Prospective divorce clients often have a concern that utilizing the collaborative process to resolve their divorce may put them in a weak position. Such a client may feel that the other spouse took advantage of him/her during the marriage, so why won’t the other spouse do the same in the collaborative divorce process?
In her authoritative book on collaborative law, Pauline H. Tesler, Esq. from California gives a concrete example of how to advocate collaboratively without being weak. The following quote is in the context of discussing temporary support at the beginning of a case:
“The collaborative process is fluid and adaptable. Although starting the first four-way meeting with intense negotiations about the amount of temporary support to be paid is generally a mistake, there are other ways to get money flowing from the higher to the lower earner, or to get a retainer paid to the homemaker-spouse’s lawyer,… Skilled counsel can present ideas… for interim short-term solutions to obvious cashflow… problems, saying something like this: “John, you know Mary hasn’t got any money coming in and she needs to buy food and gas and so forth. We don’t know yet what the regular amount of support is going to be for her and the children, but we can’t even get to the meeting where we will discuss that unless she has some money for necessities. You aren’t giving up your right to negotiate about the amount, but we need a gesture of good faith so that Mary will know this collaborative process is not going to be unsafe for her… ”
Collaborative Law, Achieving Effective Resolution in Divorce Without Litigation, by Pauline H. Tesler, at pages 183-184.
For anyone who is concerned that going collaborative means being weak, the following may help alleviate such fears:
- When parties begin the collaborative process, they sign a document called “Ground Rules for the Collaborative Process,” and the first ground rule states as follows:
- “Attack the issues and concerns at hand, do not attach each other”
- This ground rule helps people understand that opting for collaborative does not mean that you have to bend over backwards to please the other spouse. Going collaborative means to be empowered to express your needs and interests, or what is most important to you in resolving the case, in a respectful way.
- Both collaborative attorneys want both parties to assert their needs and interests to the maximum extent, and to do so respectfully.
- Depending on the circumstances at any given moment, a collaborative lawyer can be either a partisan or a facilitative advocate. When the client is having difficulty being assertive, the collaborative attorney can be more like a traditional lawyer (a partisan advocate) to assure that the client’s needs and interests are fully expressed. When the client is empowered and can articulate what is most important to him/her during the negotiations, then the collaborative attorney can let the divorcing couple do most of the speaking (a facilitative advocate).
Although no one is perfect, experienced and devoted collaborative lawyers know which way is the best way to advocate depending on the situation.
