Most family law attorneys are familiar with the saying: "A good settlement is when both parties are equally unhappy." Striving for a better outcome than mutual unhappiness, more and more lawyers are learning the Collaborative process to help their clients experience a better quality divorce process. With tens of thousands of trained lawyers, and a commensurate number of satisfied clients, the growth of Collaborative Practice is reflective of its results. In a recent large-scale research survey, about three-quarters of parties were either “satisfied” or “somewhat satisfied” with the outcomes of their divorce handled through the Collaborative process – a significant satisfaction rate given the losses that are inherent in divorce -- all while achieving a settlement rate of roughly 90%.
When compared to litigation (in every trial there is at least one loser, so we can assume that at least 50% of the parties will be dissatisfied with the outcome) and conventional settlements (where both might be equally unhappy with the outcome), the roughly 75% satisfaction rate with the outcome for Collaborative Practice cannot help but stand out as exceptional. The satisfaction rate with the process is even higher yet. Certainly, as can be expected among a population of divorcing parties, Collaborative Divorce has a few dissatisfied clients. The research shows that these are a distinct minority. Only 7% of parties reported they were extremely or somewhat dissatisfied with the process.
People who choose Collaborative Practice for their divorce are neither special nor unique. Like most divorcing parties, those who select the Collaborative process typically have moderate to significant anxiety, a medium to high level of conflict, trust issues, and fear. Perhaps the key ingredient for those who select the Collaborative process is a commitment by both parties to work towards an agreement without surrendering their agency to a third party decisionmaker. Instead of engaging in a debate about who might be right, the professionals and the parties jointly and actively participate in dialogue to systematically work through the issues. Much of that dialogue occurs in face-to-face meetings. Instead of spending substantial time preparing for trial, the attorneys devote all their efforts towards helping the parties reach agreement.
The Effect of Acrimony in Divorce on Children
While not for every client or every lawyer, Collaborative Practice can be a highly beneficial process for those who choose it. Several studies link acrimony between parents as the biggest predictor of the dysfunction of children. Compared to children whose parents’ divorce had less acrimony, the children of acrimonious divorces statistically have more physical illnesses, higher school dropouts, greater drug abuse, more mental health issues, and poorer school performance. As part of her study about how families fare after divorce, psychologist Constance Ahrons, Ph.D., the significant impact that the divorce process can have on the creation of a functional post-divorce family.
Dr. Ahrons suggests there may be a link between the structure of the adversarial process and acrimonious divorce, noting: “Our model [of divorce] is a highly dysfunctional one for most divorcing spouses. It destroys the potential for cooperation so essential for a good divorce.” Collaborative Practice offers an alternative to the adversarial system, and is geared to reduce acrimony during divorce. A byproduct for many is that new problem-solving skills learned during the divorce are the same skills parties can use to solve problems and reduce acrimony after divorce process has ended. By reducing acrimony and teaching parents how to collaborate, Collaborative Practice may well be the most helpful to the children of divorce.
Elements of Collaborative Process
At every step of the way – from the initial client meeting to the conclusion of the matter – Collaborative Practice will look different from conventional legal representation. Instead of focusing on legal rights and positioning to finesse trial outcomes, both the parties and professionals voluntarily choose to devote their entire effort towards working together using a practical problem-solving approach. The professionals and parties together deliberately avoid the adversarial and relationship-damaging dynamic of seeking to create a “winner” at the expense of a “loser,” instead focusing on ways to create agreements that are acceptable to all. By having lawyers and subject matter experts assist and educate them at every step of the way, parties get reality-checks, steer clear of common pitfalls, and make solid decisions with informed consent and an understanding of the alternatives.
Broken down to its essentials, a typical Collaborative case will go through several stages. First, all will work together to gather, exchange, and develop information that may be beneficial towards resolving the case. Information exchanged in a Collaborative case can cover a wide swath and will often cover a broader area of topics than a conventional case might, including not only financial but also emotional information. Second, the parties and professionals explore different options that might be available to satisfy what the parties want to accomplish. Third, the parties and professionals together develop scenarios for possible agreements, which are then discussed and refined. All phases are grounded by the foundational goals of the parties.
Most of the “action” in Collaborative cases occurs in several joint meetings, where the parties and their Collaboratively-trained lawyers are present to discuss the matters then at hand. Between joint meetings, clients and lawyers will meet separately to prepare for agreements. During the process, the attorneys will prepare the appropriate documents to file the proceeding with the court (at a mutually agreed time), and the documents that embody the parties agreements.
The research survey asked clients which aspects they felt most satisfied about in their experience of Collaborative Practice. The joint meetings ranked highest, with clients indicating they were most satisfied with the respectfulness of the process, the disclosure of information in the case, how free they felt to express themselves in their case, the opportunity to address concerns directly with the other party, and how joint meetings were scheduled to accommodate their schedules.
Most Collaborative practitioners operate with the objective of helping the parties reach an agreement that is highly durable. To achieve durability, both parties must be able to accept the terms of the agreement without significant resentment. When achieved, agreements will not need to be enforced, future disputes are less likely to arise, and those disputes that do arise can often be more easily addressed. A durable agreement is unlikely to be achieved unless the joint meetings are safe and respectful to all. The 75% satisfaction rate that clients have with the outcome of Collaborative cases is perhaps reflective of the efforts of Collaborative practitioners to achieve a durable agreement rather than an unsatisfactory and unstable settlement.
Start of the Process
The formal Collaborative process starts with the execution of the “Participation Agreement” by the parties and professionals. The Participation Agreement contains the rules for the process, such as a mandate that each party discloses all material information. The Participation Agreement also includes the defining element of Collaborative Practice, the “disqualification clause.” The disqualification clause mandates that Collaborative attorneys cannot represent the parties in any contested proceeding. If the Collaborative process ends for any reason without agreement, both parties must obtain new lawyers. Detractors of Collaborative Practice usually focus on the disqualification clause.
The impact of the disqualification clause is significant. With court no longer an easy option, the emphasis of the discussion changes. Coercive threats of court action are almost completely eliminated. New skills to help parties reach agreement need to be learned and developed if the process is to be effective. Mediation skills become the bread and butter of Collaborative practitioners. These skills are used to help the parties reach understandings.
Perhaps paradoxically, the disqualification clause can provide a great sense of safety from the perspectives of the parties. Neither party worries that the other’s lawyer who acts nicely today will be the lawyer who cross-examines them tomorrow. Safety also comes from the knowledge that the other party is so serious about reaching agreement that they have hired a lawyer who can only assist them to reach agreement. The safety from the disqualification provision helps clients candidly explore options in the presence of both lawyers – and everyone has the benefit of being able to engage in group problem-solving.
Costs of the Collaborative Process
As with divorce in general, because of the many variables there is a wide range as to the cost of the Collaborative process. According to recent national survey results, the average total fees paid for all professionals in all cases was $24,185, of which $20,884 were attorney’s fees paid to both lawyers. The survey showed that on average, professional fees for all professionals (including coaches, financial professionals, child specialists) in difficult cases was $32,588 and in easy cases $12,127.
These averages do not take into account the variances between regions. In places with higher hourly fees and rates and more complex environments, such as in King County, professional fees tend to be higher than the averages in the study. Most experienced lawyers who become Collaborative professionals note anecdotally that the professional fees for Collaborative cases often appear to be lower than equivalent settled conventional cases, but is simply not possible to test those anecdotal observations by running the same case both ways.
One byproduct of having satisfied clients is that they pay their bills. Collaborative practitioners consistently report that their accounts receivable are no longer a problem.
Limitations of the Collaborative Process
No process is right for everyone, and the Collaborative process is no exception. All processes – including motion practice, settlement conferences, arbitration, trial, mediation, and Collaborative Practice – have their unique strengths and weaknesses. All lawyers have the obligation under the Rules of Professional Conduct to explain the risks and benefits of every process that might be available, so that their clients can make informed decisions about the means by which the client’s objectives might be addressed. See RPC 1.2, 1.4.
Because Collaborative Practice can only be effective when agreements are reached, the process is not suitable if either party lacks the capacity to reach that objective. One of the challenges of assessing capacity is that conflict is a normal and expected part of any divorce, and the parties’ past and present conflict cannot be extrapolated to predict their ability to effectively participate in the Collaborative process. That being said, cases that are unsuitable for the Collaborative process include those where parties present with untreated mental illness, serious ongoing substance abuse, active domestic violence or emotional abuse, untreatable PTSD from prior abuse, and similar dysfunctions.
A research survey of Collaborative practitioners shows the following as the top five risk factors that were present when Collaborative cases terminated without having reached agreement:
These are individual risk factors and there are others that are less prevalent. It can be safely assumed that the risk of termination is increased when multiple factors are present. However, the presence of these factors does not automatically rule out the possibility of a successful outcome. Interestingly, three of the factors above relate to some form of lack of impulse control. Two of the factors relate to intractable conflict. The research reflects that there were successful cases that had the factors listed above. The ability to effectively address cases that present the above factors will depend on the individual circumstances and skills of the practitioners, but will certainly make a case much more difficult.
For the other 90% of cases, Collaborative Practice is successful when measured by the percentage of cases where agreements reached. However, the quantity of cases that settle is perhaps the wrong metric when looking at divorce outcomes. Perhaps the better metric is the quality of the agreements. When the case outcomes are rated by former clients who went through the process, Collaborative Practice stands out as exceptional.
J. Mark Weiss has practiced law in Seattle since 1987. Since 2007, his practice has been limited to Collaborative Practice, facilitative mediation, and consultation. Mark served eight years on the WSBA Family Law Section Executive Committee, was Chair of the Section in 2003, and received the Section's "Ken Weber Attorney of the Year" Award in 2005. Mark is a Fellow of the American Academy of Matrimonial Lawyers, was the Washington Chapter President in 2010-11. His website is www.mark-weiss.com
 This article uses findings from two research studies conducted by the International Academy of Collaborative Professionals, both based on a sampling of 933 cases. The survey results are contained in the Spring 2012 issue of The Collaborative Review, and notes variations in data exist between jurisdictions. The Professional Practice Survey was completed by professionals. The Client Experience Survey was completed by clients. Different surveys as to settlement rates in Collaborative Practice cases have varied slightly from study to study, ranging between 88% and 92%.