By Carie Silvestri
It isn’t a touchy-feely job title: divorce attorney. Law school training sets a certain scene: a courtroom, a winner, a loser. The attorney’s job is to find evidence of wrongdoing from the opponent and to form an argument to prove their client is innocent. In this inherently adversarial process, attorneys do not make friends of the “other side.” For many areas of practice, such as insurance defense or tax law, litigation, if not always pleasant, makes sense and works. But for divorcing couples, especially those with children, if divorce is a fire, the litigation model can have the effect of tossing in a Molotov cocktail. Even if there is a “winner,” everyone loses.
Fortunately, a practical proven alternative exists: collaborative divorce. This process is a group effort—attorneys for each spouse, a neutral financial professional, and a neutral mental health professional—and requires attorneys to develop a different skill set than simply procuring a “win.” While litigation delves into the past and points fingers and demands retribution, collaboration is decidedly present tense and works from now, with the goal being best solutions and healthiest paths to move forward for the family as a whole.
For an attorney to be successful within the collaborative model entails a paradigm shift; namely, an ability to cede control and trust becoming part of a group charged with remaining open to creative solutions. No one player is more important than another. After the extensive training and experience I have had in collaborative divorce, I have learned more than anything else, how to truly listen. As a litigator, listening can be a liability—the focus is how will this play out in a courtroom or what is my spin. But if the goal is no longer winning at all costs for one side but for all involved, the approach changes. Instead of concocting the perfect counter argument, the focus lands on identifying new avenues to create resolutions that everyone can live with.
In litigation, an attorney hears only his or her client’s take on events that led to divorce; it is infinitely easier to drink the Kool-Aid. With collaborative, while an attorney will have met with the client initially, fairly quickly, the whole team convenes. Attorneys get a read on the spouse that his or her client didn’t necessarily reveal; what one might gloss over when it is just client and attorney cannot be ignored in the room with everyone present. Thus, an attorney can evaluate a client through a different lens early on. He or she is more apt to identify truth telling as well as evasive or avoidant behavior from either side of the table; knowing both players provides a better handle on what is real and what will work in this particular saga moving forward. Furthermore, with the expertise of the neutral mental health professional, potential emotional landmines can be addressed immediately. The more an attorney works collaboratively with a mental health professional present, the psychological clues clients present, even body language, possible implications, and how best to handle triggers become more apparent. Another advantage to listening to both parties is a tendency for the attorney to learn to ask better questions which in turn elicit clearer, more nuanced answers; suddenly more sophisticated options that serve everyone are on the table.
Collaborative law training and experience has fundamentally changed who I am as an attorney. I have learned to listen first, check my ego at the door, approach situations holistically, and embrace big picture remedies. I can better identify if an amicable resolution is actually the goal for my client (which may or may not be conscious). If not, I have a conversation with my client and the mental health professional and simply ask, is collaborative really what you want? Can you work with your ex to discover equitable solutions? Can you put the well-being of the entire family in the forefront instead of hurt and anger over how you feel you have been wronged?
Spouses who choose collaborative divorce do not come back to haggle over minutiae and are often able to move forward to find a new normal. The process of litigation does not provide a foundation for clients to move past a win or lose mentality. At the end of the day, utilizing collaborative divorce has strengthened my belief in the positive impact the legal profession can have on the lives on those we serve. Understandably, not all attorneys are able to collaborate successfully, and the litigation process serves a purpose for certain types of cases and clients. But I choose to commit myself to what I consider best practice and believe that for this I am not only a better lawyer but a better version of myself.