Sunday, July 16, 2006

What is Collaborative Divorce?

We’re speaking with attorney Katherine E. Stoner, whose legal practice focuses primarily on family law and mediation. We’re talking to her about her new book, “Divorce without Court: A Guide to Mediation and Collaborative Divorce.”

NOLO: Let’s start with the basics: what is collaborative divorce, and what’s the difference between it and divorce mediation?

KATHERINE E. STONER: Well, both are ways for divorcing couples to settle without a courtroom fight. In mediation, the spouses work with a neutral person who helps them make decisions together; they may or may not have lawyers actively participating or consulting with them. In collaboration, the divorcing spouses hire lawyers to work with them and meet with them in what’s called “four-way meetings,” and everyone works together towards a settlement. They may also hire other professionals – therapists, financial experts – to help them, but they do everything collaboratively and cooperatively, and they sign an agreement that the lawyers and the other professionals have to withdraw if they don’t reach an agreement.

NOLO: Okay, the idea of divorce and collaboration seems almost like an oxymoron, so how can a couple that’s fallen out of romance, that commonly are very angry or bitter with each other, be expected to collaborate on a divorce?

KATHERINE E. STONER: Yeah, that’s a good question. Actually there are lots of reasons why they might mediate or collaborate. One, and one that’s sort of a primary concern to people when they come in, is that it will save them quite a bit of money. There are statistics that show that the average contested courtroom divorce will cost $50,000 or more, if you’re in a major urban area, and collaborative divorce, even with two attorneys involved every step of the way, is going to be considerably less than that, and mediation where the lawyers may interface even less will be of course even less expensive than that.

NOLO: There’s another element to this of course, and that’s the attorneys, and if you’ve seen the film Intolerable Cruelty, the tag line there was, “engage the enemy,” which is really the common view of divorce lawyers, sort of ruthless adversarial individuals who place their clients’ interests above everything else, so what’s the response been from the family bar to this sort of idea? Have they been open to it, or…?

KATHERINE E. STONER: Yeah, in fact, I think the ruthless litigator is really the exception rather than the rule. In my experience, most lawyers who do family law all the time see the damage that’s done to people financially and emotionally, and to their children, and really want to do something different, and so the response of the bar has actually been pretty tremendous, and I think that’s one reason why mediation and collaborative is kind of taking off these days.

NOLO: You said something interesting in the book that I liked; you said that couples who are divorcing don’t need alternative dispute resolution, because they don’t have a dispute, and I think most of us think, “Well, gee, is that correct? A divorcing couple seems to have so many disputes,” so could you just explain and give us a background on how you came to that conclusion?

KATHERINE E. STONER: Yeah, some people are able to make all the decisions that have to be made themselves. Maybe they do it at the kitchen table, maybe they do it over a period of time, but they don’t really need help in making decisions. They may need help in the paperwork of getting divorced, because they’re not going to be experts. Other people need some help with not only the paperwork but with making the decisions, and that’s where a mediator or collaborative lawyers would come in.

NOLO: Okay, and you also maintain in your book that there are four divorces, not one, which I thought was really, really interesting. Would you just explain a little for the people who are listening what the four divorces are?

KATHERINE E. STONER: Yeah, when you think about divorce, of course the first thing people think of is the legal divorce. Turns out that the legal divorce is potentially the simplest part of the whole thing – if people reach an agreement, and sign an agreement, and all they have to do is a certain amount of paperwork, it’s a very simple and not very expensive process. The real complication comes from the other things that are going on with the people who are divorcing. What I call the emotional divorce is really a grieving for the marriage, for the relationship, and all the experts say that everybody has to go through it. Usually the spouses go through this at different timing, so you might have one person who’s much further along than the other person, so there can be fights and problems just presented by the fact that one person’s all the way through their grief process; they’ve accepted the decision and they’re ready to move on, and sort of like, “What’s the matter with you?” and the other person’s back at square one. So, that can complicate things, because it actually ends up feeling that somebody’s getting dragged along, and they’re going to be resistant. That’s one divorce. In addition to the emotional divorce, there’s the financial divorce. There are lots of hard decisions that have to be made by people when they divorce. They’re taking one economic unit, they’re dividing it into two; chances are, they’re going to have to spread the same income over a much bigger overhead, and there’s the question of just how much paying are they going to share, and how are they going to do that. So, that’s the financial divorce, and those decisions have to be made, too, and people can end up fighting about those whether or not they’re in the legal arena. The final divorce is what I call the social divorce, which is just the realignment of all the relationships that people have. When you’re in a family together, you have family friends, you have extended family on both sides often, you have community acquaintances and networks, kids have friends, and all of that gets ruptured and has to be kind of realigned and recreated, and that times some time, so if people can get all those, the emotional divorce, the financial divorce, and the social divorce kind of lined up, the legal divorce is simple. What usually happens when there’s a big, hard-fought litigation, those other things have not been taken care of, and people are going into court with all that other stuff still to be resolved.

NOLO: So, does collaborative divorce work towards resolving all four, or…?

KATHERINE E. STONER: I think that collaborative divorce and mediation allows for more room to consider all those other things; I mean, the law is the law, so if you’re in a courtroom, a lot of things about what’s going on with people emotionally – not so much financially but emotionally and socially – are really irrelevant from a legal perspective, so in a collaborative divorce, the lawyers are trained to actually be looking for these other things. Similarly, a mediator is going to be trained to be helping people look at those other things and attend to them, and do so in a timing that works for both people and not just for one of them.

NOLO: The person who’s in the situation where they need to find a collaborative divorce attorney… how do they go about doing it? It might be a difficult task for someone to find one in let’s say a rural area.

KATHERINE E. STONER: Right. Well, actually, there’s some rural areas where there’s been a lot of interest in collaborative. There’s a place called Medicine Hat I think, up in British Columbia where just about all the lawyers signed onto this collaborative idea, and so it’s really well-established there. It’s coming in a lot of places; it’s not everywhere yet, and one of the first things I would recommend to people to do is to go online if they can, and do a search for “collaborative law,” or “collaborative divorce,” or something like that. They’ll find collaborative groups of lawyers and professionals who have actually gotten together and sort of made sure that everybody’s conforming to some standards and that sort of thing. With mediators, it’s the same thing; if you look online, that helps, and you can also ask for referrals. Chances are there’s somebody around who’s had a good experience with one or the other who can point you in the right direction and say, “This person would be good,” or at least a person to talk to and get some names or referrals.

NOLO: Now, you also say that collaborative divorce isn’t for every divorcing couple, and one way you try to help people determine whether they’re right for it is you created a survey. Where’d you get those questions, and how did you come up with that idea?

KATHERINE E. STONER: This was really something that came from my own practice, from my research, and from talking to other mediators and family lawyers, just looking at the people who seemed to succeed in the hallmarks, or the cases that seemed to do well in mediation or in collaboration, versus the ones that it’s really pretty obvious that it’s not for them, and so the idea is really to help people kind of take an honest look at their own situation and assess how ready they are for something like that, and if they want to try it, and maybe they’ve got some areas where they’d scored low on this little test; it’s not scientific or anything, but it might give them a chance to get more ready. Now, there’s some obvious times when people shouldn’t be mediating or collaborating. One is if there’s domestic violence, if it hasn’t been resolved, and nobody’s getting any help for it and it’s not sort of in the past, those people shouldn’t be in a face-to-face situation, even with collaborative lawyers. I think that’s a situation where there needs to be a little more protection. Another situation that can be hard is if there’s drug or alcohol abuse on the part of one or both spouses and that hasn’t been dealt with and people aren’t in recovery, and dealing with that. So, there’s sometimes when it’s just not the right thing, but generally, people will know for themselves.

NOLO: Well, you say it’s not the right thing sometimes if it’s not mutual; is that correct?

KATHERINE E. STONER: There is one question I think about whether the decision to divorce was mutual, and, you know, usually there’s one person who decides; there’s one person who sort of initiates the whole thing. Sometimes people both come to the same conclusion at the same time, but a lot of times they don’t. But you could still mediate or collaborate as long as both people have accepted the reality that they’re going to get divorced. But occasionally you have someone who just doesn’t accept it and doesn’t want it, and even if they think they can mediate, the truth is, they’re going to undermine it, because the whole point of the mediation or collaboration is to reach an agreement that will be the operating guidelines for your post-marriage life, and if you can’t get to that point emotionally, then you’re not ready to collaborate or mediate.

NOLO: The last question I have for you is, what happens if you’re in that collaborative situation, and one of the participants falls back on the legal side of things, like, “Well, gee, under the law, I would be entitled to such-and-such.” How do you deal with that, because you’re really trying to step away from that in a way?

KATHERINE E. STONER: Well, it’s perfectly fine to look at what the law provides; in fact, I think it’s important that people know that, and that you have conversations about, “This is what might happen in court, if you weren’t here,” because that is the alternative that people have to reaching an agreement, and you can’t have a yes if you don’t have a no, so people need to know what the alternative looks like, including the cost of getting there. But if people want to reach an agreement and have the case be uncontested, they’re going to have to consider more than the law. So, it’s all very well to say, “I’m entitled to X,” or “I’m entitled to Y or Z,” it’s still going to mean that you’re going to have to convince the other person that they should agree that you get that, and that you give them something in exchange in order for it to work.

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