Traditional vs. Collaborative Approaches to the Divorce Process

Typically, divorcing couples use one of three processes: 1. They come up with a do-it-yourself settlement (no support, takes a high degree of emotional stability, problematic if there are power imbalances, subject to all the pitfalls of not having legal advice); 2. They go through mediation (no legal advice, still problematic if there are power imbalances); or 3. They go through the traditional litigation process (often psychological and financial damage is done under the associated pressure and duress). The Collaborative Law model removes the court which is inherent in the traditional model, offers support and legal expertise not present in the mediation model, and fully supports the concept of both parties working towards a solution initiated by the do-it-yourself model. Following is a comparison specifically between the Traditional and Collaborative approaches.

Traditional: Advantages?

• The concept is familiar (and therefore the most prevalent).
• Spouses are not challenged to refine communication skills.
• Spouses are shielded from one another and the process.

Collaborative: Advantages

• The parties involved are in control of the process.
• Just agreeing on the Collaborative process often puts spouses on a positive track.
• Spouses often coordinate their search for attorneys.
• Collaborative Law attorneys are trained in interest-based conflict resolution to identify big-picture goals and common ground, and to avoid arguments in favor of goal setting, active listening, common interest identification, creative solution generation, and outcome maximization
• Reaches the best choices for all parties involved.
• Completely transparent and geared toward negotiation.
• Not entwined with concern about what a Judge might decide.
• Usually less expensive and often more expedient than traditional approach.
• Conducive to being less stressful and more positive in outcome for all involved.
• A valuable book on the process is available: The Collaborative Way to Divorce: The Revolutionary Method That Results in Less Stress, Lower Costs, and Happier Kids—Without Going to Court, by Stuart G. Webb and Ronald Ousky.

Traditional: Disadvantages

• The process is driven by the court.
• Does not teach divorcing couples how to resolve conflicts on their own.
• Incurs significant financial and emotional costs in the preparation for trial.
• With the fear of going to court, spouses may feel compelled to favor finding aggressive trial lawyers over attorneys with particularly strong negotiation skills.
• When a party is served the paperwork by the Sheriff’s Department, for example, it can be shocking, intimidating, and can plant the seed for a long litigious process.
• Once served (and sometimes prior to being served), the complaint is filed at the District Court at which time it becomes public record no longer in either party’s control.
• The inevitable back-and-forth, which can only happen between attorneys once a court action is filed, can become unnecessarily time-consuming and expensive, when previously all could have been settled by simple communication between the parties.
• Prevalent in Maine are chambers conferences with the Judge and negotiations between attorneys being conducted out of the presence of the spouses. This lack of transparency can leave each party feeling bullied, in the dark, or both.
• Decisions left to the court are not necessarily the fairest, best, or most appropriate.
• Interim and final orders are too often entered by an agreement that one of the parties after-the-fact feels was entered without their consent and/or complete understanding.

Collaborative: Disadvantages?

• The process calls on both spouses to make a commitment to develop their communication and negotiation skills with one another.