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By Karen Poole
Family lawyers say the divorce process may never be the same with the advent of "collaborative divorce," a special, non-adversarial process for couples looking to make a clean break.
In a nutshell, collaborative divorce is a process by which specially trained and certified attorneys, along with a team of non-legal professionals, help a divorcing couple achieve a win-win result without resorting to litigation.
While this may not be a new idea, it is just now becoming popular in Michigan thanks to the work of Ann Arbor attorney Margaret J. Nichols and a dedicated group of family law practitioners and other professionals.
Recently, Michigan became the 19th state to boast a collaborative divorce law institute, and the 39th state to have certified collaborative divorce law practitioners.
Nichols said she was intrigued by the idea when it was first conceived in the early 90s, but she decided to become a trailblazer after hearing collaborative divorce law specialist Pauline H. Tesler speak at the 2003 American Academy of Matrimonial Lawyers annual meeting.
"I thought, if it's going to happen, I'll have to make it happen," she told Lawyers Weekly.
Shortly after returning from the conference, Nichols began talking to practitioners and discovered there was strong statewide interest. In fact, several attorneys had already attended collaborative divorce training out of state and were excited about bringing it to Michigan. Thus, the Collaborative Law Institute of Michigan was born.
Troy attorney Ronald M. Bookholder said he had adopted the collaborative divorce model into his practice years ago and was excited to finally be able to formally practice collaborative divorce.
According to Bookholder, Michigan is not the only state catching on.
"In a survey I did for the American Academy of Matrimonial Lawyers, I discovered this is one of the fastest-growing alternative dispute resolution processes in the country," Bookholder noted.
Meanwhile, American Academy of Matrimonial Lawyers President Richard S. Victor of Bloomfield Hills said he is pleased there is another choice for couples dissolving their marriages.
"Anything that can help resolve divorce cases to save acrimony within families is beneficial," Victor said.
However, Victor cautioned that collaborative divorce does not have unanimous support among academy members. Some, he said, oppose formal sanctioning of the process because they believe it encourages clients to give up their right to litigate.
"[They think it] teaches lawyers how not to litigate and to advocate for and on behalf of their clients in ways that would benefit the client. Rather, it is a conciliatory approach to divorce which may not always be in the client's best interests," Victor said.
What Is Collaborative Divorce?
Collaborative divorce is an alternative to traditional divorce. Tesler calls it a "close cousin" to other forms of alternative dispute resolution.
But Lansing attorney Martha J. Kaser cautioned that it should not be confused with mediation.
"It's very distinct from mediation," she noted. "The people have their own attorney and other professionals trained in the collaborative divorce law process are brought in on a case-by-case basis."
When a couple decides to use collaborative divorce, they both retain their own attorney trained and certified in collaborative divorce law. The attorneys then meet with the clients to determine the issues.
Once the issues are determined, the attorneys develop an agenda for the first of several four-way meetings between the two clients and their attorneys.
At the first meeting, the parties and their attorneys sign a document in which they agree to certain principals, the primary goal of which is to work toward a resolution that is good for both parties. The parties also understand that if the matter must be litigated, both attorneys and any retained professionals must step aside.
According to Nichols, the monetary investment that will be wasted should the process derail is a strong incentive to ensure the participants will work hard toward a resolution.
The attorneys in turn identify the issues to be resolved and then retain the appropriate professionals — appraisers, financial planners, mediators and/or mental health professionals — to help achieve the resolution without having a winner or a loser.
"We hope folks will buy into the idea that there is not a winner or a loser and that we can figure out what is best for families, especially families with kids, and what is realistic," Kaser said. "This might help people because people in our culture do not get trained in how to resolve disputes — they get trained in how to blow things up."
Kaser's colleague, Brenda L. Lawson, agreed.
Lawson said people need to be able to divorce and then go on with their lives that may necessarily involve their former spouse.
"The traditional model of divorce impedes the ability of people with children to transition to co-parenting situations," Lawson said. "Collaborative law is an alternative."
Not For Everyone
Not all couples are good candidates for collaborative divorce, however.
As such, Detroit attorney Cheryl A. Fletcher said attorneys practicing this method should create a checklist to determine whether it is appropriate for a particular couple.
"Things that should be considered are whether there is domestic violence or whether one of the parties has shown that he or she cannot be trusted," Fletcher said.
Kaser pointed out, though, that a certain amount of self-selection will automatically occur.
"If people want to kill each other, they will not choose the collaborative process," she said. "If people feel the need for protection, they will not seek the collaborative process."
Kaser said this is good choice for people who just want to dissolve the marriage, not hurt their spouse.
"One thing we see in our practices is that people don't necessarily want to hurt each other. They want to get divorced, have their rights represented, and get the best deal they can," she noted.
Just as collaborative divorce is not for every client, it is likewise not for every lawyer.
According to Nichols, the perfect lawyer for collaborative divorce is the one whose calling is to help, not necessarily litigate.
"Attorneys who love helping people get through difficult times and want to do it in a way in which they can be there to help their client get an effective solution should get the training and try it," she said.
Moreover, Nichols explained that attorneys who have learned "barracuda skills" don't see the reason for practicing collaboratively.
"Terrorizing the other side works," she said. "I learned a long time ago that you can win using those practices but, in the process, wreck a family."
Ethical Concerns
Finally, Fletcher said she studied the ethics of collaborative divorce law for the Michigan institute and determined that there are two main issues — whether an attorney should suggest collaborative divorce law as an option, and whether clients can waive their rights to litigate.
"The answer is, if there is informed consent, there are no ethical concerns," she said.
Fletcher further explained that if attorneys identify the appropriate candidates through use of a checklist, they can safely suggest collaborative divorce law.
Finally, she said, clients never actually waive their right to litigate, they simply waive their right to litigate with that particular attorney.
For more information on collaborative divorce law, see the web site for the Collaborative Law Institute of Michigan http://www.collaborativelawmichigan.com/index.htm.
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© 2004 Lawyers Weekly Inc., All Rights Reserved.
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September 13, 2004
