Collaborative divorce – A new way of thinking

Divorce proceedings are often seen as being very litigious and aggressive. However, legal, health and financial practitioners can now offer couples alternative methods to work out divorce agreements in a way that gives them more control and input. Collaborative divorce is one of the options to achieve this.

Collaborative divorce is a process that has gained traction in many countries, especially in the United States and Canada. Essentially, and similarly to mediation, it is a process that attempts to minimize conflict between divorcing parties and to make sure, wherever possible, that emotional and relational damage is limited during the divorce process.

Although collaborative divorce differs from mediation in a number of ways, the two processes have a shared ethos. Collaborative divorce is a non-litigious process where each party has an attorney who represents them in the process. In the mediation process, the parties will each ideally have independent legal practitioners advising them, but these advisors are not present at, and don’t participate in, the mediation sessions. In the collaborative process, the parties’ legal advisors are at each meeting and participate actively in the negotiation process. These legal advisors are drawn from a pool of skilled lawyers trained in collaborative divorce and who respect the process.

Depending on the model followed by the collaborative practitioners, they might also choose to have a mental health practitioner (also trained in collaborative divorce) at the sessions. The mental health practitioner could be a psychologist, social worker or have similar skills. Their role is to help keep the negotiation process on track and to help the parties communicate effectively to make sure that agreements are reached as easily and quickly as possible. While the mental health practitioner may not be at all the sessions, they will certainly have an active role to play in the process, especially when it comes to helping parents make the correct decisions for child-related matters.

In the collaborative divorce process an independent financial advisor (similarly skilled in collaborative divorce) will be contacted to assist with resolving any financial issues that arise. These issues could include the division of matrimonial property, effective budgeting or more complicated questions around business valuations, trusts, investments and the like.

At the start of the collaborative divorce process the parties need to commit in writing to abiding by the rules of the collaboration, which include full disclosure of all relevant information, respectful communication and an understanding that the process is without prejudice. This means that none of the information or documentation produced during the collaborative process can be used by either party if the process is unsuccessful and they end up taking a litigious path in their divorce proceedings.

The advantage of the collaborative divorce process is that there is no court intervention and the parties are free to negotiate terms that are fair and that work best for their lifestyles and needs. It is also important to note that, if for some reason the process is unsuccessful, the practitioners involved withdraw from the divorce proceedings and the divorcing parties have to engage new legal representatives for their litigation.

While mediation and collaboration may not work for everyone, there is a lot to be said for a process where divorcing parties feel supported by their attorneys but are still effectively in charge of the terms of their divorce agreements.

By Gillian Lowndes – partner and family law specialist at Lowndes Dlamini