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When One Party Wants Collaborative and the Other Doesn’t

As a lawyer who’s been involved in collaborative law from its beginnings in Texas, I have some clients who seek me out specifically because they’re interested in pursuing collaborative law to settle their divorces. And, as someone who’s been a longtime advocate of collaborative law, I welcome those clients and the opportunity to work in the solution-oriented format that collaborative law provides.

But it takes two to tango, as the saying goes – and no matter how much one party in a divorce wants to do a collaborative divorce, it doesn’t mean that all those divorces will go the collaborative route.

There are a number of reasons why this happens. In some cases, the other party has trouble trusting the party who wants a collaborative divorce and feels that negotiation opens the door to deception, despite the safeguards in the collaborative process against that. In some cases, one or both parties don’t want the hassle of switching lawyers if the case moves from collaboration to litigation – which is an understandable concern on the surface but is an essential component for making collaborative law work. In some cases, the other party just wants to be contrarian – one party wanting a collaborative divorce can be enough for the other party to not want a collaborative divorce, particularly if the parties also have a differing level of divorce readiness.

And yet, there are ways that a divorce can still utilize collaborative practices and strategies even if the divorce isn’t technically a collaborative divorce.

The first step is to establish that both parties would like to avoid the case going to court. Once a case goes to court, it positions the parties (and their respective lawyers) as adversaries, places the decision in the hands of a judge, and necessitates that the couple (often needing to continue interacting as co-parents) must overcome the bad feelings resulting from the court battle.

If the couple can agree they don’t want that dynamic, it motivates them to negotiate. This can happen via mediation, or via the parties meeting with the lawyers, or on their own to attempt to work out issues without paying court costs. Though each party can meet with his or her respective lawyer, and the lawyers can convey their clients’ wishes to one another, it’s not the most efficient method for settling differences – yet, sometimes, it’s the only one that one party’s comfortable with.

It’s a good idea, once the parties agree they don’t want to litigate in court, to determine what means of communication the parties are willing to use to negotiate. It could be that one party doesn’t want to be in the same room with the other party, but would be open to conference calls or online chats.

One of the best features of collaborative law is that it involves mental health professionals – including psychologists or licensed professional counselors who have worked with children and their parents on divorce issues – to help parents arrive at parenting plans that fit the entire family.

If a couple can agree on that component of the divorce, it can not only help them arrive at a plan more expediently and inexpensively than it would in court but can also make the case less complicated by having a major element of the settlement worked out outside of court. It’s also conceivable if a couple can get over the hurdle of settling one major issue, that they can be encouraged to continue that momentum to other issues.

Ultimately, the concept of collaborative law relies on the willingness of people to come up with creative solutions to their issues. Collaborative law has a set of rules to help shape the process, and it has some distinct advantages that benefit couples who choose it. But just because couples don’t decide on collaborative law doesn’t mean that cooperation and creative solutions aren’t possible. It just requires that the divorcing couples and their lawyers are willing to work together to come to a settlement that suits everyone involved. It’s not the easiest thing to achieve, but it’s still better than moving straight into an adversarial track that can harm couples and their children long after one of the parties has “won” a court battle.