The collaborative divorce: moving toward positive outcomes and positioning opportunities

Divorces do not always have to be an all-out war waged in court. Couples have other options that can help them better manage the process, mitigate the public airing of their issues, and position themselves more positively in the court of public opinion - should that be a concern.

The collaborative divorce process may be a particularly appealing option, especially for those high-net-worth individuals or major celebrities who live their lives in the glare of the media spotlight. In addition to its inherent fairness and thoroughness, the collaborative divorce process can help control the media message, positioning the dissolution as more emotionally mature and amicable.

Collaborative divorce explained

A collaborative divorce involves married parties going through an agreed-upon dispute resolution process to settle all issues and ultimately dissolve the marriage. Designed to keep the parties out of trial and court in general, the collaborative process - like mediation - involves private proceedings between both parties and their teams, composed of lawyers and other experts. These experts might include home or real estate appraisers, forensic accountants, or child therapists for custody issues.

Both parties sign a binding agreement to participate in the collaborative divorce process, which encourages them to keep returning to the negotiating table until they can resolve all their issues, including division of property and finances, spousal support, child-related matters, etc. The negotiations continue until both parties find a final compromise that is agreeable to all. Often, what keeps both parties staying in the collaborative law process is a critical clause in the contract that states that if either party opts to end the collaborative law process and go to court, both parties must start over with all new lawyers and other professionals. This can be very expensive!

Collaborative divorce in history

Collaborative divorce itself is by no means a new idea. The practice was founded in 1990 by family law attorney Stuart Webb. Webb found himself so burned out on highly contentious divorce cases that he was nearly ready to give up on his career as a lawyer entirely. Nevertheless, his trepidation drove him to develop a seemingly radical idea: inviting the opposing lawyer to work with him rather than against him to bring about more agreeable solutions without the adversarial issues they faced.

The concept worked, and the opposing parties found that such a process and the resulting positive feelings would not necessarily have come about within a more traditional (and even more adversarial) divorce before a family law judge.

Do not presume it is easier

Collaborative divorce is by no means an easy out. The collaborative process should be conducted at every level with the same transparency, rules, and rigor as in a litigated divorce. A collaborative divorce should be far less costly than preparation for and proceeding to trial.

Still, if the collaborative law process does not work, then the costs will expand exponentially as both parties must hire new counsel and start over. It is that fear of new and significant expense that encourages all parties to continue their efforts to work towards a mutually agreeable conclusion.

Cleaner for high-net-worth couples and celebrities

Privacy and optics are often paramount when high-net-worth couples and celebrities are involved. Pleadings filed in court are part of the public record and can appear publicly contentious. Think of some recently televised cases that dragged all of the couple's issues into the public realm and became viral sensations on social media. None of the parties come away unscathed when things get ugly.

In a collaborative divorce, the court is still involved, as parties must file all the extensive paperwork for a divorce, but in the collaborative process (and in mediation), the court makes no decisions, and the proceedings are not part of the public record for all to see.

Even though it is still a divorce, the parties can position their dissolution more amicably to help protect their brands and public reputations. Think of the words "conscious uncoupling" used by Gweneth Paltrow and Chris Martin to describe their divorce publicly. The term became a watershed cultural expression and created a positive public relations moment. Because it is based on the principle of fairness, collaborative divorce helps ensure that no one party will prevail at the other's expense, and in terms of public/media optics, it can be leveraged as a values-based win-win.

Eye-to-eye with eyes open wide

With a collaborative divorce, the couple remains in control as they craft resolutions based on mutual input. Even in those cases where the process of reaching an agreement is messy and challenging, the couple may find it better than fighting before a judge. Collaboration requires hard work and complete transparency to reach agreements like any dissolution process.

One must take note that the collaborative divorce will only work for some. Sometimes, the balance within the relationship is simply not there, and the mutual respect or trust necessary for success may not be sufficient, if at all. It is a reality that some divorcing couples will need a judge to help as they cannot negotiate successfully on their own. If the divorce is rife with violence, addiction, or other emotional or contentious issues, then litigation could be the best course of action. In such instances, the needed trust may simply be unavailable.

A well-conducted collaborative divorce is all about communication, understanding, and sharing. Both parties should come into this process willing to invest in a better post-divorce chapter in their lives. For those craving control over public awareness, opinion, and the court of social media, collaborative divorce is most certainly a process worth considering. Stacy D. Phillips is a partner at Blank Rome LLP.