There is an old saying that goes, “A good divorce settlement is one that leaves both sides unhappy.” It’s a cynical thing to say, but there is some truth to it, at least when talking about traditional divorce litigation. But surely a process that makes everyone unhappy should not be described as “good.” Surely there is a better way.
Adversarial law
The adversary nature of our civil law system requires both sides of a dispute to work as hard as they can to maximize what they get out of it, which means minimizing what their opponent gets. This can work out for the best when the two parties are large businesses arguing over the financial terms of a contract. After all, it’s just business. It’s not personal.
Marriage, on the other hand, is deeply personal. In the context of a divorce, the adversarial approach can lead to nasty arguments and lingering resentments. A toxic atmosphere can cause the whole process to drag on longer — and cost more — than it should.
When young children are involved, an ugly divorce can be particularly damaging. Parents will most likely have to continue to work together on custody issues, and so animosity between them can continue to be a problem for their children for years to come.
Collaborative law
Collaborative law represents a systematic approach to dispute resolution in which, rather than seeing their dispute as an adversarial battle, all parties emphasize their interests in reaching a mutually beneficial agreement. The approach relies on mediation and other techniques to resolve issues in a way that can lead to a better atmosphere, and often at a lower cost than traditional dispute resolution. It is particularly well-suited in the context of divorce.
A group of lawyers developed collaborative law in the 1990s in an effort to design a better way to divorce. While collaborative divorce sometimes involves mediation, the two things are not the same. In divorce mediation, a neutral third party helps two adversarial parties reach an agreement. In collaborative law, the two parties, each represented by their counsel, agree to work together to reach an agreement.
When it works, it works
Over the past 30 years, collaborative law has become increasingly popular. From a small program in the American Midwest and Canada, the collaborative approach has now spread to law offices across North America.
Many lawyers find collaborative law leads to better results for their clients, more quickly, and with less expense than other forms of dispute resolution. Many clients find it leads to a healthier atmosphere for themselves and their children.
However, it’s important to note that collaborative law is not for everyone. Some divorcing spouses just can’t get along well enough to collaborate, and just can’t resolve their issues on their own.
People who are looking for a better way to divorce should speak with a lawyer who is trained in collaborative law to learn more.