‘Conscious Uncoupling’ – Marketing the Collaborative Approach to Divorce

Gwyneth Paltrow and Chris Martin decided to ‘consciously uncouple’ this year, which created a media frenzy. Paltrow posted this phrase on her website, and got lambasted for using the term to announce her divorce from her husband. Fans and critics alike were left puzzling, wondering why a divorce should be reduced to such an arcane phrase.

For lawyers trained in the collaborative approach to divorce, this phrase likely struck a chord. The collaborative approach is based on the notion that parties can divorce without blame, shame, and airing out grievances in a courtroom. For couples with children, like Paltrow and Martin, the need to protect kids and ensure their long-term health and well-being, is paramount. ‘Conscious uncoupling,’ or ending a marriage without a fight, allows couples to get through a divorce with respect and dignity, and hopefully with friendship intact. Friendship, or at least civility, is crucial to co-parenting: children suffer when exposed to post-divorce bitterness and anger between parents.

Although the phrase ‘conscious uncoupling’ will never be the norm, introducing clients to the collaborative process as a legitimate alternative to litigation should be. The collaborative approach is not a new concept, but has yet to gain solid footing in Maine. Stuart Webb, an attorney in Minnesota, is considered to be the movement’s “founding father.” In 1990, after fifteen years of practicing divorce law, he decided to stop taking his clients to court. He would only settle cases with other like-minded attorneys out of court. If a potential client wanted to litigate, he would send that client elsewhere.

The movement has gained momentum in other countries and states, some more quickly than others. Texas, for instance, quickly recognized collaborative law as a legitimate alternative to litigation. In 2002, Texas divorce lawyers were trained and the first statute officially describing and sanctioning the practice was passed in our country.

What is involved in the collaborative process and how can we make it gain traction in Maine?

The process, in theory, is quite simple. Collaborative law is a process that gives parties and their lawyers a way to divorce through discussion of the issues and interest-based negotiation without the need to go to court and have a judge decide the final outcome. The parties must pledge to be honest and committed to ending the marriage without litigating.

First, both parties retain lawyers whose only job is to help the parties settle their divorce collaboratively. The parties and the lawyers sign a “participation agreement” committing to the process. For the lawyers, this is a limited representation — limited to the collaborative practice. If negotiations fail and the parties wish to proceed to court, they must find new attorneys.

After execution of the participation agreement, the attorneys build an interdisciplinary team to assist the couple through the divorce process. The team includes a divorce coach, neutral financial consultant and, if needed, a child specialist. Coaches are mental health professionals, who are neutral and oftentimes described as “the master of ceremonies.” The financial consultant collects, reviews, and analyzes the family financial data. The child specialist is a licensed mental health expert who assists the team by providing input for the parenting plan.

After the team is assembled, information gathering occurs through meetings. The clients meet with the coach individually and together. They also meet with the financial consultant. The professionals report back to the attorneys. Then, the clients meet with their attorneys to prepare for a six-way meeting with the team. They discuss their needs, goals, concerns, and law as applied to the case. Prior to the meeting the professionals teleconference to discuss the parties’ progress towards consensus and areas of disagreement.

A six-way meeting occurs with the team and clients. The goal of the meeting is to develop the parenting plan and financial plan by generating options. Plans are generated through collaborative brainstorming of those options to see how options meet the goals of the clients. If agreement is not reached, another six-way meeting is scheduled. Once there is resolution, documents are drafted by the attorneys. The parties meet with their attorneys for execution of the documents, which are promptly filed at court after the meeting.

The theory and steps of the collaborative process are simple. It’s the application and practice of the process that is proving to be difficult in Maine.

Many attorneys were trained in the collaborative process in 2008, but it has failed to become a legitimate option for divorcing couples. This is due, in part, to resistance among attorneys to embrace the paradigm shift from advocating to problem solving. We are trained to zealously advocate on behalf of our clients. It’s difficult to sit at a table and resist the urge to dig in our heels regarding how the “deal” should be struck. Ceding control to others is not comfortable for attorneys. The collaborative model requires that control be shared with other professionals.

The other reason is money. Most litigators are of the mindset that the more you fight, the more you make. However, at the recent “Interdisciplinary Collaborative Divorce Training” in New Hampshire, the faculty, from the Hudson Valley practice group, reported that collaborative divorce files are never on the list of aging accounts receivable, whereas many divorce litigation files are. Collaborative divorce clients pay.

Admittedly, faculty reported that they spend less billable time on collaborative divorce files, but the influx of these cases intermixed with regular divorce cases is allowing them to extend their professional lives. Collaborative practice can stave off “burn out,” especially for practitioners specializing in divorce. This upshot of the practice should not be underrated, as burn out is a real problem. Dealing with a client’s emotions and finances on top of the legalities of a divorce is not an easy task. With the help of other professionals — coaches for emotions and financial consultants for finances — the burden of a case is shared in collaborative divorce.

Not only can collaboration reduce our stress, it can reduce the stress on families and our courts as well. Thus, there are greater societal implications if we can market collaborative divorce in Maine. By reducing the stress on families, we can increase the number of ex-spouses who effectively co-parent long-term. This benefits their children and, in turn, their grandchildren, in countless ways. We do not need to detail the benefits of easing crowded court dockets. We would all like to see the trailing list evolve into something more predictable.

The burden is on us to raise awareness regarding collaborative divorce and to offer the process to clients as a legitimate alternative to litigation. Attorneys have to generate the work — market it and then practice it. Approximately a dozen attorneys have formed the “Southern Maine Collaborative Law Practice Group” with this goal in mind. As a starting point, the attorneys will introduce collaboration at the initial client consultation. Selling points include:

  • Clients save time: They will not be waiting for court conferences, mediations, and hearings;
  • Clients save money: Clients pay more up front to hire the team, but can save money in the long term. For instance, paying a financial consultant to handle discovery at a lower rate than an attorney results in significant savings. Also, attorneys are not constantly billing on parallel tracks – litigation on one, and settlement on the other.
  • Clients succeed: According to the Hudson Valley practice group collaboration works 94% of the time.

Obviously, there are times when collaboration is not an appropriate alternative. There is not a need to market the process if a client has already been served, if a client is clearly narcissistic, if there is a clear power imbalance, or if trust is irretrievably shattered.

However, for the right clients the collaborative approach can work, especially in our state. Maine is a forward thinking state whose residents generally embrace new concepts like ‘conscious uncoupling.’ This is an opportune time to raise awareness that divorce does not have to lead to the “War of the Roses.” There is a kinder, gentler approach for those who want one.

Heather T. Whiting practices primarily family law at Drummond & Drummond, LLP. She is a certified mediator and guardian ad litem. If you would like Heather’s assistance with a Family Matter, please contact her at (207) 774-0317

‘Conscious Uncoupling’ – Marketing the Collaborative Approach to Divorce was previously published by The Maine Lawyer’s Review on June 19, 2014

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