Last week, I talked about some of the problems inherent in our current divorce procedures. The situation isn’t helped by some of the fringe groups advertising on the Internet. One promises for just $179 to protect men from "losing it all" in a divorce. It’s opening paragraph reads "Understand why thinking the lawyer will represent your best interest is the key to failure and almost guarantees a bad settlement. Learn to control your mouthpiece and understand the unique relationship he will have with your ex-wife."

Nonsense like this just increases the problems for the attorney and the client. The client comes in thinking the attorney is somehow working for the other side, needs to be "controlled" and must be made to "fight" for what is rightfully his. It doesn’t foster the trusting relationship needed at a time like this.

Even after the divorce is granted, things don’t always improve. Often the fighting just begins in earnest. Because of emotional trauma, anger, and a desire for revenge, parents often transfer the battleground to their children. The children become pawns in a living chess match, with each parent trying to gain an advantage. The children suffer and the emotional scars remain visible to everyone for years to come.

Thirty years of research tells us that children of high conflict divorces need far more counseling than children of intact nuclear families. They are more likely to use drugs and alcohol, become delinquents and criminals, adjust poorly to school, and have problems with their personal relationships as adults.

One-half of all U.S. marriages end in divorce. Only 24% of American family units are traditional nuclear families. Single parent families, unmarried couples with children, grandparents raising grandchildren, and other non-traditional family units comprise the other 76%.

Many family law attorneys and other professionals feel this adversarial legal system for divorce stresses clients and lawyers alike. They believe there has to be a better way to handle divorces.

There are three major elements in any divorce: the financial, the legal and the emotional. The legal system can address legal issues, but it isn’t geared to handle financial and emotional ones. Many lawyers understand how these elements interact and are able to facilitate reasonable settlements. This is an art, not a science. Some lawyers settle almost every case with a minimum of rancor and emotional stress, while others settle cases only after everyone has been put through the wringer.

In April, 2000, Stuart Webb authored "Divorce Without Bloodshed" in the Lawyers Weekly USA. Webb felt there had to be a better way and with the help of other professionals developed the idea of collaborative divorce. His concept was simple. The parties and their attorneys agree in writing not to go to Court or even to threaten to go to Court. Instead, they agree to negotiate everything in their divorce. Each party is represented by an attorney and can bring in other professionals to help resolve disputes and prepare the case for an uncontested divorce.

Negotiations take place in group meetings and each party can call the other’s attorney or any member of the collaborative team at any time. Proceedings are private and the parties make all the decisions. Full and frank discussions are encouraged since nothing can be used in court later.

This procedure contains an interesting twist. If the parties cannot reach agreement, they cannot use the attorneys, experts or other counselors who were involved in their collaborative team. Those who embrace this concept argue it is essential because it keeps either party from threatening court action to gain the upper hand during negotiations.

Fees for collaborative divorces were reported to be 1/10 to 1/3 the cost of traditional divorces. Collaborative specialists say their settlement rates are well above 90% and they seldom need to resort to the traditional court-based model.

The collaborative divorce model isn’t for everyone. If you have a true high-conflict case involving domestic violence, drug and alcohol abuse, personality disorders or similar issues, you probably need the coercive power of the court to resolve it.

For those who aren’t comfortable with either extreme, there is an intermediate model referred to as the cooperative model. Here, the parties begin with the collaborative model, but retain the right to go to court if a settlement cannot be reached. This is more in line with the normal mediation model seen in Oklahoma.

These collaborative and cooperative models see divorces as problems to be solved, not battles to be fought. The adversarial model focuses on the past and places blame for what happened, while the collaborative and cooperative models focus on the present and plan for the future. They accept the marriage’s failure and work to create a successful divorce. They accept the emotional element and work on solving it, rather than ignoring it.

Because parties are cooperating, not fighting, they can control their expenses and seek creative solutions to minimize costs to both sides.

In Enid, trained mediators will work with attorneys to try to resolve cases amicably. Divorce is always painful, but it doesn’t have to be devastating. By selecting attorneys who recognize the emotional and financial costs of divorce and attempt to minimize them, divorcing couples can help pave the way to a better future.

© Jerry E. Shiles 2004

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