Conflict in Collaborative Divorce

August 7, 2013

An unfortunate myth associated with collaborative divorce is the idea that the process only works with divorcing couples that are experiencing little to no conflict or discord in their relationship.  While it is certainly true that people who are in  a tremendous amount of conflict to the point that they are completely unable to negotiate in a reasonable way even with the support of the mental health coach, the collaborative divorce attorneys, and the financial neutral, then the process cannot work.  While virtually all divorcing couples are experiencing some degree of conflict when they start the divorce process, I have found that most families do not find themselves in such an extreme situation.

Sadly, many (but certainly not all) divorce attorneys approach essentially all divorcing couples assuming the parties are in an extreme state of conflict and need the attorney to take over the case and make decisions for them (or work through the courts for the judge to make all of the decisions).  Even sadder is the reality that because most divorce lawyers are paid by the hour, the attorneys are financially incentivized to “stir the pot” with the parties, which often generates more conflict, which leads to a messier more expensive litigation process.  There is certainly a place for litigation in the small percentage of cases where one or both parties is mentally ill or where domestic violence is an issue, but there is a large group of families in the middle who could go with either collaboration or litigation who would greatly benefit by choosing the former.

I find in my collaborative divorce practice, that it is the higher conflict couples who actually benefit the most from using collaborative divorce.  The reason is that people in greater conflict are the very people who have the most to lose financially, emotionally, and in terms of time if they resolve the divorce through litigation.  Those higher conflict families are the folks who end up in years long litigation, running up many tens of thousands (or even hundreds of thousands) of dollars in attorney fees in the process.

Collaborative divorce takes those same couples who are at risk of a nasty divorce and helps them move in and through their conflict in a much more constructive way.  There are a number of specific ways that collaborative divorce more effectively manages family-related conflict than does litigation:

  1. No Court Intervention – The Participation Agreement for collaborative divorce spells out that if the parties decide they want to litigate rather than collaborate, both attorneys immediately withdraw from the case and the parties hire new litigation attorneys to start anew in that process.  So the parties are both financially and logistically incentivized to try and settle the case.
  2. Collaborative Divorce Attorneys – Lawyers who are trained in collaborative divorce understand that an important part of the process is the idea that they should minimize or eliminate threats and posturing from the collaborative process, which helps the parties contain their own reactivity rather than having the lawyers add to it.  In short, if the lawyers behave rationally their clients are more likely to do the same; if lawyers stir up anxiety the clients will become anxious.
  3.  Mental Health Coach – Collaborative divorce understands that in all divorces there is an emotional divorce that runs parallel to the legal divorce.  Rather than ignoring that reality, this process takes the bull by the horns and includes a   mental health coach on the collaborative team.  Coaches are licensed mental health professionals whose overall purpose in the process is to support the parties emotionally as they move through the divorce process and to be “keepers of the process” generally.  So they are continually working to prevent and manage conflict as it arises throughout the negotiations.

In sum, I frequently talk about the idea that the difficult part of a divorce ought to be the decision to get one.  Sometimes the divorce comes after many months or years of significant conflict.  For families experiencing a great deal of discord, collaborative divorce can be a way to move through a very difficult transition in a way that minimizes stress and positions people to be good co-parents to their children after the divorce is over.

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