While divorce may be inevitable, the path to divorce is not. And family lawyers may have more influence than we realize.
Collaborative divorce provides a team of specially trained attorneys and other professionals to guide clients through the divorce process without going to court. But what if the collaborative process is not available to a client? Don’t worry. Even in litigation, there are attorneys who leverage collaborative tools to create that “good divorce” experience and outcome whenever possible.
As a young attorney, I am fortunate to work for a firm that strives to achieve the “good divorce” in every case. I’ve learned a lot by watching my mentors go from collaboration to litigation and back again – because whether they are in a joint meeting or a contested court hearing, they are utilizing some of the same tools from their toolbox.
Below I have highlighted four collaborative techniques that I have seen attorneys use effectively in the litigation process—these tools are equally available in every attorney’s litigation toolbox.
#1: Identify Client Goals
The collaborative process is founded upon interest-based negotiation. This type of negotiation technique is different than the traditional position-based negotiation (or also known as positional bargaining) – which commits to a position that focuses only on the one party’s needs and interests.
At the very beginning of a collaborative divorce case, clients are asked to complete a negotiation workbook that helps them to identify individual goals, interests and concerns. In the first joint meeting, the clients share their goals for the process with the group, and the goals are memorialized in writing. From that point forward, the goals are reviewed (and if necessary, revised) at the beginning of every joint meeting, serving as a reminder of what matters most throughout the process.
The exercise of deep introspection by the client as to goals and interests can prove invaluable not just in collaborative divorce, but also in litigation. In addition to providing an excellent tool for consistent communication and understanding between the client and lawyer, the written goals can serve as a reminder down the road of the reason for strategic decisions or a call to reason in settlement negotiations.
#2: Understanding Client Goals
Beyond merely identifying goals and interests, the lawyer should seek to understand why each one is important. This understanding is imperative in negotiating for the client and provides greater value to the client through creative problem solving, peacemaking, and settlement.
So, how does the lawyer get to the reason beneath the goals and interests—especially in litigation without the benefit of the collaborative team and process?
In getting to “why,” research tells us to start with “what” questions. “What” generates answers that are more forward-thinking. I have observed collaborative professionals use this technique effectively to elicit from clients what truly matters most to them in their divorce. They may ask each client:
What do you want out of the divorce? What goals do you have for your children? What goals do you have regarding your co-parenting relationship once the divorce is concluded? What exactly does that look like to you? What are you willing to let go? What do you value? What does your spouse value? What are your concerns?
The client’s answers to these questions ultimately lead to the development of their goals and interests in the divorce process.
#3: Revisiting Client Goals
As I mentioned before, participants in the collaborative process discuss goals at the beginning of each joint meeting. You may be wondering what happens to client goals in the litigation process. Are they ever brought up again?
A quick example. A mentor of mine faithfully starts and ends every litigation case with the client’s goals. It goes a little bit like this:
- Beginning of Client Relationship – Similar to the collaborative model, once a client has retained her services, she asks the client to write down three goals for the divorce process.
- Revisit Throughout the Process – She may ask the client to revisit (and reconfirm or revise) the goals to keep them focused on what is important and what matters to them (because such perspective can easily be lost after a bad day at the courthouse).
- Conclusion of Case – Finally, at the end of the case, she will discuss with the client whether the goals were met.
This example illustrates how litigation clients can benefit from the application of collaborative tools in the litigation process. Every decision made should be made with the client’s goals in mind. Setting appropriate goals early on help keep the lawyer and the client focused on the big picture.
#4: Advocate for Settlement
Settlement is at the core of the collaborative divorce model. Lawyers that are committed to the collaborative process, are committed to finding effective and creative ways to reach settlement.
This may come as a shock, but not all litigators like to wear boxing gloves and it is possible to resolve litigation cases outside of the courtroom. I have seen attorneys resolve the most highly contested litigation cases in mediation. It may not be easy – but it is possible.
The settlement track focuses on meeting the client’s goals and interests to produce the best possible outcome. Litigation involves enormous expense, time, and uncertainty. Attorneys owe it to their clients to try to settle.
This mindset is just another technique that lawyers can use to orchestrate that “good divorce” for their clients.