Divorce is pretty common these days. Each year half as many people divorce as marry. While that creates a lot of marriages that last, it also means that many fail. Attorneys whose clients are contemplating marriage school them in divorce planning, just as attorneys whose clients are starting a business get assistance with bankruptcy planning as part of the package.
The vast majority of divorces in California, something like 85 percent, are untouched by attorneys. Not surprisingly, people who do not have a lot of assets look to other alternatives. One of the services I provide at the Center for Peacemaking and Conflict Studies at Fresno Pacific University is divorce mediation, and most of my clients are hoping to save money by being cooperative. It usually works, and they also learn through the process how to cooperatively parent their children and deal with future financial issues. Having handled over 1,000 divorces as an attorney and mediator, I can help people avoid known pitfalls.
Divorces involving attorneys usually have two features in common: lots of assets and lots of conflict. Mediation is also just right for some of these folks, but many of them are so seriously conflicted that they feel the need for an advocate who will protect them. Some are not so conflicted, but one partner has a lot more information than the other, and the playing field is not level. Attorneys can play an important role in both types of cases, with or without mediation.
As hard as it may be to believe, attorneys do not enjoy working with highly conflicted, emotionally enmeshed divorce cases. Clients in these cases are often out to cause pain to the other party at any cost. In my own practice I decided my life would not include hurting people for money, and I moved into mediation and dropped litigation. Other lawyers are similarly motivated.
The result is a new field for attorneys: collaborative law. In collaborative law the lawyers and clients work together to find the best solution to the disputants’ problems. Family law is a large area for collaborative lawyers, but it can be applied to any area of conflict. Rather than each lawyer/client team sneaking up on the other side, all business is done in a four-way conference where both clients and both attorneys are present. While helping their own client understand the situation, both attorneys are committed to crafting the best overall response to the problem. Win-lose is not an option. In each situation the result must be a win-win for the parties, and both attorneys are committed to it.
If a client decides that cooperation isn’t working and that litigation is required, both collaborative attorneys are dismissed, along with any joint experts (accountants, appraisers, parenting coaches), and the clients must begin from scratch. This is part of the collaborative agreement, and is a powerful disincentive to refusing to cooperate.
Collaborative law can be a great money-saver, but that isn’t the main motivation. The main motivation is going through the divorce process in a way that leaves both parties satisfied with the outcome, and able to collaborate in their relationships with the children.
There are many collaborative law groups around the country. In central California, Central Valley Collaborative Law Affiliates provides family law support and is expanding beyond that. The International Academy of Collaborative Practice brings all the collaborative law groups together. There is a way to handle divorce, or other legal issues, without war. As a mediator and member of Central Valley Collaborative Law Affiliates, I support these groups, and wish them well in the cases appropriate for their services.
Duane Ruth-Heffelbower, J.D., directs the Fresno Pacific University graduate programs in peacemaking and conflict studies. A California attorney and ordained Mennonite minister, he has intervened in thousands of situations on five continents, including armed conflicts, and trained thousands of people around the world in conflict resolution. He maintains an active professional mediation practice.