Is there a better way to divorce without hiring the warrior lawyer? A way to avoid fighting an extended battle in the court system? Yes there is.
COLLABORATIVE FAMILY LAW
Collaborative family is an encouraging alternative for settling family law disputes outside of our traditional court system. This morning I started thinking about its similarities with something I learned about in law school called Navajo Peacemaking. I also got curious about what lessons could be learned from how other cultures resolve conflict.
NAVAJO PEACEMAKING AND HARMONY
Navajo Peacemaking is a process in which a Naat’aanii (peacemaker), familiar with Navajo common law and traditional Navajo stories, guides disputing parties to develop a resolution. A Peacemaking session includes members of the extended families of the disputants. It may also include community members with relevant expertise (e.g., alcohol treatment counselors and social workers).
Peacemakers understand Peacemaking as a spiritual process. The primary purpose is the restoration of hózhó, roughly (but inadequately) translated as “harmony.” Peacemaking is premised on traditional Navajo jurisprudence where law is not a process to punish or penalize people. Rather, it’s purpose is to teach them how to live a better life. It is a healing process that either restores good relationships among people or, if they do not have good relations to begin with, fosters and nourishes a healthy environment.
The Chief Justice of the Supreme Court of the Navajo Nation has discussed the key difference between the Navajo approach and our traditional justice system in the U.S. Our traditional system of justice utilizes coercion and power with an emphasis on finding the truth. Whereas the Navajo approach relies more upon morals, values and interests. Which approach would you prefer for your divorce?
The Navajo system does not focus on assigning guilt or moral fault that demands punishment. Rather, the focus is on achieving group integration. It does this by nourishing ongoing relationships with the immediate and extended family, relatives, neighbors and community.
The entire premise of the Navajo system of justice is that law is not a process to punish or penalize people. Rather, it is to teach them how to live a better life. It is a system that repairs broken relationships and encourages healthy surroundings.
COLLABORATIVE FAMILY LAW AND NAVAJO PEACEMAKING COMPARED
So, as an Orlando divorce lawyer, I started thinking about the comparison of Collaborative Divorce with Navajo Peacemaking. Both processes encourage people to be masters of resolving their own problems by facilitating open communication through responsibility and respect. The parties in both systems are the key players in the process with the help of a team who plans and makes decisions as a group regarding the future relationship.
Like Navajo Peacemaking, collaborative divorce assists people to take ownership of their problems. And, to resolve them in a manner that promotes a healthier future family and community relationship.
As a trained and experienced collaborative divorce lawyer, I am interested in learning more about the Navajo Peacemaking process. What interests me most is its connection to the healing of the mind, body and spirit to resolve conflict instead of perpetuating it using power, force, and punishment. So, how can we apply these concepts to the collaborative process to help people have a better divorce without hiring a warrior lawyer?
COLLABORATIVE DIVORCE – BRIEF HISTORY
The idea of collaborative divorce was generated by Stuart Webb around 1990. He was tired of the traditional divorce process. The traditional, battle-it-out in court, litigated divorce can take a tremendous toll on everyone involved. Everyone takes a hit, including the spouses, the children, the lawyers, the judge, and the couples’ extended families, friends, and co-workers.
There had to be a better way. A process where people could get a better divorce without hiring the warrior lawyer. So, Collaborative Divorce was born!
COLLABORATIVE DIVORCE VS. THE COURTROOM DIVORCE
Generally, the traditional litigated court divorce starts with one spouse hiring a lawyer. They would probably ask friends and relatives for recommendations. People typically suggest that the lawyer be “the best trial attorney in town” or “a real bull dog.”
The other spouse will probably be fearful that the hired lawyer will be a true prize-fighter and will go searching for their own champion to send into the ring. Oops! I meant the courtroom.
Let’s pause right here…
Does it make sense to hire the most aggressive warrior Divorce lawyer to handle your divorce when somewhere between 90 and 95 percent of all cases never go to trial? Would you agree that it makes more sense to choose a lawyer who is a good communicator, negotiator, and accomplished at settling cases out of court?
If your case has little chance of ever reaching the trial stage, it has a high probability of being settled outside of the courtroom. So, it makes more sense to hire a lawyer who will work toward a negotiated settlement doesn’t it?
Ok! Let’s continue…
COLLABORATIVE DIVORCE – HOW IT WORKS
You and your spouse would coordinate your selection of the attorneys. Each collaborative divorce lawyer will need to be collaboratively trained, and will likely share a similar philosophy about divorce. The majority of collaborative divorce lawyers believe in a better divorce process that includes collaboration, cooperation, respect, dignity, and humane treatment of everyone involved. Each of you will need your own, collaboratively trained lawyer.
Ethically, a lawyer cannot reasonably represent each of you because you and your spouse’s interests generally are in conflict. Once the lawyers are chosen, you will need to select the type of model that is most appropriate for your situation.
COLLABORATIVE DIVORCE FULL TEAM MODEL – NEUTRAL PROFESSIONALS
There are different collaborative divorce models available. One model is called The Full Team Model. With the Full Team Model, after the attorneys are selected, the four of you (you, your spouse, your lawyer, and your spouse’s lawyer) will select a neutral mental health professional and a neutral financial professional.
I say “neutral” because those professionals do not represent or advocate for you. They work to help you and your spouse reach an agreement. They will help you communicate more effectively with your spouse. Moreover, they will help you retain respect and dignity by preventing your spouse from bullying or threatening you.
In fact, everyone involved signs a Participation Agreement, an enforceable contract to refrain from threats or coercion. If you or your spouse threatens to go to court, the agreement is broken and there may be some significant ramifications for that breach.
After the team is selected and the participation agreement is signed, there will be a series of team meetings. This is where all of you will work together to help you and your spouse craft a divorce settlement that is designed to meet you and your spouse’s needs and interests.
The collaborative divorce process is really a negotiation between you and your spouse. The other professional team members are there to help you and your spouse work it out. Ultimately, the power to settle is in your hands, not in the hands of a judge.
So, I have given you a brief glimpse into the collaborative divorce process or a better divorce without hiring the warrior Lawyer. I firmly believe in it, and I counsel all of my clients on its benefits and draw backs. If you are thinking about getting a divorce, please find a collaboratively trained lawyer in your area and speak to them about collaborative divorce.
If you try a collaborative divorce, you might get your divorce faster, for less money, and not destroy yourself, your spouse, your children or your financial estate in the process. How does that sound? Worth looking into?