A challenging aspect to the collaborative divorce practice is the lack of expertise displayed in numerous attorneys participating in collaborative cases. At this point, any family lawyer can decide to dabble: but if the collaborative case doesn’t settle, the ripple effect greatly damages the overall process. The probability of a case terminating because it cannot reach settlement directly correlates with the lawyer’s collaborative experience and genuine commitment to the process.
Collaborative divorce is not something a lawyer can do halfway. It requires a paradigm shift. It is the antithesis of litigation. Litigation in the family court setting too often results in significant harm to both spouses: a win-lose mentality in an emotionally high stakes process where kids can get caught in the crossfire. After watching knock down drag out litigation over the years, 99% of the time, the client fares infinitely better in a collaborative divorce if—this is a big if—the professionals are proficient. So what can be done?
Collaborative Divorce Texas—formerly the Collaborative Law Institute of Texas—has initiated a promising foundation. The organization endeavors to credential lawyers in the state who possess expertise: training with professionals, a certain number of cases under their belt, and a comprehension and commitment to this unique practice. There are two levels of credentialing. A master’s level distinction requires professionals to have fifty concluded collaborative cases over the course of their career as well as significant leadership and service in the collaborative community. The credential level is less strenuous, entailing at least eight concluded collaborative cases within the last three years (or twenty over the course of a career). Both tracks require peer recommendations and specific education and training. Certification will most certainly boost the number of collaborative cases that are settled. By providing a basis of comparison, it will also allow the public to choose from a pool of professionals trained in a similar way and substantially qualified.
Litigators who make good collaborators are those who do everything possible to settle. Collaboration means working as a team that includes a financial professional and a mental health professional as well as both attorneys and each client to create the best outcome for the family. Divorce law contains a psychological component: the practice fraught with emotional baggage and family of origin issues, which we all have. In addition to understanding the psychology of marriage, self-awareness is a prerequisite for a successful collaborative attorney. Clients are functioning on a low level due to the stress of divorce. Knowledge on the part of the attorney, therefore, is key; not only of a client’s emotional health and potential issues, but also to our own emotional triggers. When a lawyer doesn’t have insight into what might be a personal trigger, it is trickier to hold the client accountable and to avoid enmeshment. Another indispensable ability on the part of the attorney is the emotional IQ to view a client through a broader lens than just that of advocate. We’re not serving our client if we’re too busy being yes men. If we’re stuck in “my client is right and his spouse is wrong thinking,” we’re not in the business of collaborating to help anybody.
Collaborative divorce lawyers must grasp the complex dynamics of the psychological interplay between people, particularly those embroiled in emotional upheaval. The attorney has to identify and clarify the issues and communicate effectively and reasonably. If our client has significant emotional problems, we must recognize red flags as they occur and share those concerns with the mental health professional timely. This requires composure. We are not in the business of fixing people. But as collaborative attorneys, we have to recognize that our client isn’t always right. We hold them accountable. This is a highly specialized skill set which sets us apart from not only litigation lawyers but also lawyers who collaborate but have not shifted their core belief in how they can best serve their clients. Credentialed collaborative lawyers, especially those holding a master level credential, should be well versed in the skills needed to facilitate successful collaborative divorce cases.
Since 2000, I have watched the landscape transform as collaborative divorce has become an option. Collaborative law is not easy. For it to work, attorneys must shift point of view and accept a new set of tenets. But in my experience, it is the least destructive best alternative for couples and families in a divorce situation. This is an exciting time for collaborative divorce; the possibilities are boundless. Certifying attorneys who possess the expert training, extensive experience, and personal makeup to work collaboratively will have an enormously positive impact on the collaborative process moving forward. For those truly interested in practicing collaboratively, certification will be the gold standard.
This blog originally appeared on the Calabrese Huff website, which you can find here.