In my last post, I explored the idea of "doing no harm" as a collaborative divorce attorney. Some of the comments I received focused on what it means to be a collaborative professional, while others lamented the prevalence of lawyers who call themselves "collaborative" when their actions are anything but.
If you are a client who wants to use the collaborative process and stay out of court, you want to know that your attorney is actually committed to that process and understands the different mindset that it requires on his or her part. To get the information that you need, these are the questions I would suggest you ask a collaborative attorney and the types of answers that you want to hear:
How concerned are you about whether my spouse gets what he or she wants out of this divorce?
This question gets to the heart of whether an attorney understands the difference between collaboration and cooperation. Collaboration is about making sure that the other person's goals are met, even if they aren't the same goals as yours. This is a lot harder than simply cooperating, which is about working together for mutual benefit toward common goals.
I've been doing this work for more than 20 years and I don't know many couples who share an abundance of common goals at the end of their marriage. Sure, couples will often be equally committed to keeping their kids out of their conflict and maintaining an amicable relationship with each other, but they rarely have common financial goals for their lives after their divorce. One may want to own a home, while the other is comfortable renting. One may feel confident in her career, while the other sees layoffs all around him. One may want to have access to cash, while the other feels comfortable investing in real estate.
Agreeing to work collaboratively at the beginning of the process requires each party to respect the other's concerns and goals, and understand that an agreement cannot be signed until each of their goals are met.
Do you believe that people who are truly in conflict can engage in negotiations without drawing lines in the sand and using threats and coercion to get what they want?
An attorney trained in collaborative law will answer "Yes" and will go on to explain the difference between a position and an interest.
Maintaining a position is insisting on a specific outcome. That's the "line in the sand."
Negotiating with interests in mind is being open to different outcomes that can meet that underlying interest.
Collaborative lawyers encourage their clients to articulate their interests rather than take positions. This opens up options and often clears a path to an outcome that can meet both parties' individual goals.
How comfortable are you using other professionals as part of our divorce team?
The answer that you want to hear is that these attorneys have had positive experiences working with different divorce professionals including:
- Financial professionals who help to clarify each party's financial concerns and help structure an agreement that meets each party's financial goals;
- Divorce coaches who help with communication and emotional issues that can hijack the negotiation process; and
- Child Specialists who bring the voice of the child into the negotiations.
Are you a member of any collaborative practice groups? What types of trainings have you had?
If you live in the New York metropolitan area and you are looking for a collaborative attorney, ask if he or she is a member of the New York Association of Collaborative Professionals. If you live elsewhere, it shouldn't take too much time to research the affiliation of collaborative professionals in your area. Membership in these types of groups can help you determine if someone is committed to working in the collaborative law process and receiving ongoing training.
Knowing that your attorney is committed to the collaborative mindset is essential to the success of the process. The above questions will enable you to weed out the committed collaborative attorneys from the less so and help you to trust that the process will move forward in the manner you envision.