Attorney Withdrawal Provision in Collaborative Divorce Agreements

February 17, 2014

There are a number of things that set Collaborative Divorce apart from other ways of resolving family disputes, but perhaps most unique (and central) to Collaborative Divorce, is the provision in all Collaborative Divorce Participation Agreements that requires both parties’ lawyers to withdraw from the case if the parties decide to move out of collaboration and into litigation.

The flagship organization for Collaborative Divorce, the International Academy of Collaborative Professionals’ (IACP) website includes the following in its basic description of Collaborative Divorce:  “Each party must be represented by a lawyer whose representation terminates upon the undertaking of any contested court proceeding.”  Elsewhere on the organization’s website is a listing of “Four Key Elements” of a Collaborative Divorce.  Two of them are “The pledge not to litigate (go to court for decision-making) and the mandatory withdrawal of both attorneys and other team professionals if either party litigates (emphasis added)” along with “The professionals’ commitment to use their best skills to assist you in reaching agreement without having to resort to judicial decision-making.”

Much of the anxiety in litigated divorce cases stems from stress around what the “other side” is going to try to do to one party or the other in court – it divides the family and their lawyers into opposing camps rather than a group working together to solve a family crisis.  That anxiety then leads to a “tit for tat” style of negotiation that is typically characterized by defensiveness, fear, and threats.  In litigation, not only is there the adversarial overlay between the two attorneys (and their clients), but there is also a strong sense of helplessness related to worry about what the judge will do or not do about a particular issue that is extremely important to them.   The truth is that no lawyer can know for sure what a judge will do in court, so everyone is left hoping the judge will buy into his or her perspective rather than the parties working together outside of court to find a solution that might work well enough for both of them.

At a high level, one of the main reasons Collaborative Divorce works for so many families is the way in which it actively seeks to minimize and manage this type of anxiety that is endemic to litigation.  Of course, there is almost always a strong emotional overtone to every divorce just by virtue of the fact that the parties are dissolving their marriage.  But rather than having the legal process to implement the decision to divorce add to the anxiety (as in litigation), Collaborative Divorce attempts to prevent and constructively manage the stress that is built into seeking a divorce.  One of the ways it does that is by having a provision built into all Collaborative Divorce Participation Agreements that requires both lawyers to withdraw from the case if the parties decide to move from collaboration into litigation.

The provision is an indispensable ingredient in the stew of Collaborative Divorce in that it creates space for the parties (and their lawyers) to brainstorm in an open-minded, creative way without having to posture against future litigation against the attorney sitting right across the table.  Stated differently, failing to include a mandatory withdrawal provision in a Collaborative Divorce Agreement would certainly have a significant chilling effect on the parties’ ability to work together and stay in a more “problem solving” mode about the divorce.

Finally, having the withdrawal provision in place encourages the parties to slog through difficult conversations and issues (with the support of the collaborative professionals on the team) rather than easily giving up and punting to a judge who does not know them or their children to make an important (perhaps life-changing) decision for them.  Having the collaborative team work together through apparent impasse shows the soon-to-be-divorced family that when the going gets tough they have the capacity to dig deeper to find out of the box solutions for their family.  Given that virtually all divorced families have issues (some small, some huge) to navigate after the divorce, families are well  served by honing their skills at creative problem solving, as well as knowing they have the option of returning to a supportive process like Collaborative Divorce if needed after the divorce is over.  They see that there is a way to move through conflict that does not require years of expensive and stressful post divorce litigation.  In short, they move into a new chapter of their lives on much more solid ground.

In conclusion, there is a certainly a place for processes like litigation and mediation along with Collaborative Divorce for families looking to end their marriage.  And not all families (or divorce attorneys) have the skills or inclination to approach their divorce in a collaborative way – sometimes for very good reason.  But regardless of the process the family chooses, divorcing families should be informed that attempting to negotiate an agreement without a mandatory withdrawal provision for the two attorneys is not Collaborative Divorce.   It may be a kinder, gentler version of litigation that works well for some families – but it is not Collaborative Divorce.

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