"Today, surgeons deliver 'minimally-invasive' procedures that have folks in and out faster than a TSA security pat-down. So why do we still languish in the dark ages when it comes to the law? Why do so many people still rely on stone knives and bear skins when getting a divorce?" Collaborative Law is the equivalent of modern, "minimally-invasive" surgery for divorce, Plano, Texas lawyer Curtis Harrison writes in "The Minimally-Invasive Divorce?" on LinkedIn.com. It lets couples privately "work through and resolve every detail of a divorce or family dispute quickly, cost-effectively and in a dignified manner." It's "a safe environment that is characterized by confidentiality, mutual respect, and control over the outcome. Through a series of scheduled meetings with pre-planned agendas, the participants work their way through the gauntlet of substantive issues." Negotiations focus not on positions, accusations, and legal doctrines, but on people's real goals, interests and resources. Which the court system is not interested in, as it is designed for finding and punishing wrongdoing.
Curtis's article is a great overview of collaborative divorce, what it can do for you, and what it demands, with a fresh perspective. One bone to pick: I don't agree with the pejorative terms "renege" and "damages clause" for the situation in which the parties fail to reach a complete agreement and have to get new lawyers for litigation. That situation is rare, but it has to be a legitimate possibility in order for agreements to be freely chosen and sustainable. Collaboration is not a promise to reach agreement. No one is bullied into agreeing just for the sake of agreement; doing that would actually punish the more compromising person and vice-versa. (Agreements that clients feel "forced" and hurried to enter are actually common in Litigation, not in Collaboration.) Failure to reach agreement is not wrongdoing, and can still be done with mutual respect. And in my one experience with a collaborative case that "failed", it was. In that case, trying collaboration first was very good for both parties and for their litigation.
So if the Collaborative Commitment -- the lawyers' irrevocable disqualification from contested litigation between these two clients -- is not a "punishment", then what is it? It is more like a speed bump or a guardrail to keep a divorce from escalating into litigation. Now, in or out of collaboration, there's always substantial value to reaching a deal and great cost to going into litigation. The Collaborative Commitment adds slightly to that value and that cost, but honestly not much: people in heavy family-law litigation often change lawyers once or twice anyway. Lawyers are replaceable. What it really does is to give couples a way to signal to each other, in a shared vocabulary, that they are serious about negotiating a "good divorce". And they do that not with empty words about trust and good-faith, but with actions that give tangible reasons to trust each other's intentions and to behave collaboratively: contracting away the possibility of litigating with these particular lawyers; and contracting to share all relevant evidence. When negotiating with their collaborative team, they don't have to worry that the other spouse is really just maneuvering and preparing for litigation.
And that "Collaborative Commitment" is just the beginning. The lawyers and other professionals who choose this kind of practice mostly tend to be better negotiators; they often were recruited by other collaborators because they get along well with other lawyers, but not at the expense of advocating for their clients' interests; they have the several days' collaborative training and mediation training that's required for membership in their collaborative practice groups, and they continually seek additional training to do the job better. But perhaps even more important, I've discovered over my 12 years in collaboration that collaborative practitioners continually seek feedback on what works and what still doesn't work for clients, and they keep improving, innovating and simplifying to improve clients' experience of divorce.