Balancing Structure and Flexibility in the Collaborative Divorce Process
January 11, 2017
Many of the previous posts on this blog have been about how the Collaborative Divorce process and the reasons why collaborative professionals do what they do in cases to support divorcing clients. This post comes at the topic more from the “60,000 foot view” of how to balance the concepts of structure and flexibility in the collaborative process.
At one end of the spectrum is the idea that all that is necessary for a case to constitute a “Collaborative Divorce” is that both clients and both attorneys make a commitment in writing not to take the case to litigation. Beyond that one core requirement, proponents of this view argue that everything else is up for grabs and can be decided on a case by case basis.
At the other end of the spectrum is the idea that for a case to properly be referred to as a “Collaborative Divorce,” multiple process points are indispensable, including the idea that the case must involve a “full team,” which is made up of two attorneys, at least one financial professional, and at least two mental health professionals – one focused on the children’s needs and other focused on the parents.
In Nashville and Middle Tennessee, our Collaborative Divorce practice group has tried to strike a balance between these two extremes. We do agree that having the attorneys commit not to represent the clients in any future litigation is a definitional requirement for a case to be a Collaborative Divorce. That position is consistent with the definition put forth by the International Association of Collaborative Professionals (IACP) – the international flagship organization for Collaborative Divorce. But most, if not all, Nashville Collaborative Divorce attorneys and other collaborative professionals in our area would vehemently resist the idea that a “full team” of five or six professionals is mandatory in all cases under all circumstances.
Instead, in Middle Tennessee, most professionals work somewhere between these extremes. We start from the premise that divorce is not a lawsuit – it is a life event that has legal, emotional, and financial elements. From there, we move to the presumption that most divorcing families benefit (and are able to move through the divorce more skillfully) if there are trained professionals helping them navigate all three spheres of the divorce experience. In the end, there is always an attorney representing each of the clients, and there is almost always one neutral mental health professional (Coach) helping the clients navigate the emotional issues and one financial neutral driving the boat on the financial issues. So, typically, Nashville Collaborative Divorce cases include a total of four professionals – two attorneys and two neutrals. This “team approach” allows the clients to be supported in all three spheres of the divorce in as efficient a way as possible.
There is value for clients simply in the structure of the process. That is to say that just the mere fact that there is someone in the process tracking and holding onto all three dimensions of the case can help reduce clients’ anxiety and help them focus on the difficult settlement conversations they will be having. So while the presumption that four professionals will be involved in collaborative cases can be overcome, collaborative professionals should be sure they are fully informing their clients of the risks (emotional, financial, and logistical) that can result from not including a professional from each of the three dimensions of the case.
Having said that, collaborative professionals should nonetheless maintain an open mind about reasons why veering from the typical process may make legitimate sense for some families. For example, if both parties are, and have been, in therapy and are consistently communicating clearly with one another, a Coach may not be absolutely necessary (although I believe a Coach is almost always advisable because it is impossible to predict exactly what may come up in the divorce discussions and the clients will be triggered by what comes up) if the clients legitimately cannot afford to cover the Coach’s fees. Similarly, a Financial Neutral may not be required in cases where both parties are financially independent and both have been fully engaged with the family finances and have a solid understanding of financial and tax issues that may arise in the divorce.
In sum, collaborative professionals should not attempt to “make it up as you go,” trying to define the process anew in each case. But we should also not rush to a closed minded orthodoxy that tries to force clients into a mold that does not work for them or their family. Collaborative Divorce, if it is to continue to grow into a robust process option for divorcing families, must find ways to hold the tension between structure and flexibility.