Sensitive New Age Family Law Settlements
Collaborative Family Law Practice

Publish Date 30 Janaury 2006

By Silvio Auditore

Divorce litigation rarely solves, but often prolongs and perpetuates family conflict. An adversarial divorce case will, more often than not, be an extremely stressful negative experience for all concerned. The lawyers will unwittingly add to the stress by utilizing their skills in the litigation process in an effort to get the best possible result for their client. The lawyers will be totally focused on achieving what their client wants and very little effort will go into understanding what "the other side" wants. There is little, or no, personal dialogue between the warring parties and "negotiations" are often conducted in the absence of clients (or with clients taking a passive role). Persuasive arguments are crafted, designed to make the client's case look like a winner and the other side's case look like a loser.

The problem is that at the end of the court case, there are no winners. Because of the bitter feud, perpetuated by the court system, spouses who might have wanted an “amicable settlement” before the court case have now lost the ability to communicate with each other. They blame and resent each other. Both have lost any respect they had for the other but they must both continue on in their role as parents for their children. This can prove difficult!

Sherri Goren Sloven, a leading Collaborative Family Lawyer in the United States, provides the following definition of Collaborative Family Law Practice:

• A commitment to a principled negotiated settlement, focusing on client empowerment and following established protocols and an established choreography without the threat or use of court action.
• A commitment to recognize that Divorce is multi-dimensional and when possible, provide resources for couples and families to assist with the parental, communication and financial issues that often arise.

Collaborative Family Law Practice is distinguished from traditional litigation by its essential core elements, which are embodied in a contract between both clients and their respective lawyers. Those essential elements are as follows:

• a commitment to negotiate a mutually acceptable settlement without using the court process to decide any issues for the clients
• withdrawal of the professionals if either client goes to court
• engage in open communication and information sharing, and
• create shared solutions that take into account the highest priorities of both clients.

By taking court litigation out of the equation and empowering the husband and the wife to seek out their own solutions (rather than having a “result”- sometimes mistakenly thought to be a “solution” imposed on them by well-meaning lawyers and judges) a potential conflict can be transformed into an improved acceptance and understanding of a ongoing “post-divorce-relationship”. It has been observed that when people are actively involved in negotiating their own settlement terms, they are committed to making the settlement work. (This is to be contrasted with a Judicially determined result which is constrained to only the legal issues and may inadequately address issues which the parties deem to be important.)

Collaborative Family Law Practice aims to achieve “a win-win settlement” where both parties have strived to accommodate each other’s important goals so that the whole family unit may benefit. As a result, sharing of parental responsibilities can become a reality instead of idealistic rhetoric. Beyond childhood, both parents can look forward to proudly taking part in important events in the future and potentially the whole family will attend and enjoy the bar-mitzvahs, the twenty-first birthdays, the graduations and the weddings. One can only dream what a civilized future family life a Sensitive New Age Divorce could bring….

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