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Thursday, November 14, 2019

Exploring four paradigms of collaborative (and mediated) divorces.

Collaborative practice and mediation are unique alternatives to help divorcing couples reach an optimal divorce settlement. For the uninitiated, however, what that uniqueness is may not be clear enough. After years of practicing and teaching mediation and collaborative family law, I have formulated four aspects of collaborative practice that clarify how this approach indeed represents a unique method in helping couples reach the best outcomes possible in their divorce.

1. How We View Divorce

The traditional legal framework views divorce literally as the “dissolution” of a relationship, as the end and the termination of the family. Collaborative professionals understand that even if a couple is going through a divorce, there are still relationships that need to be preserved. Where there are children involved, this message is crucial in helping children (not to mention parents as well) survive and ultimately thrive beyond the divorce, as being part of a family plays a crucial element in one’s sense of self, value and identity.

Collaborative professionals understand that divorce is not the end of the relationship, but a restructuring and reorganization of the family. The family remains. With this framework, collaborative professionals are not just focused on getting a deal, but are mindful of the relationships—both during the divorce process as well as for the many years after this difficult transition in the family.

2. How We Define Success

Standard law school education and traditional legal training defines success (or “winning” a case) based on getting the “most” for one’s own client and thus the “least” for the other client. This is based on a zero-sum game, where winning for one side is the hallmark of success. But how does that apply to a family, to two parents who will have to co-parent their children and who are committed to their children’s welfare and best interests? Is one parent the enemy? Does one parent have to destroy the other?

Collaborative, by its very definition, does not seek outcomes in this “either/or” framework, but acknowledges that both sides have legitimate needs and concerns. Collaborative negotiations are about problem solving, and should not be driven by fear, positioning or strategic posturing. The goal of collaborative divorce is reaching an outcome that addresses the needs and concerns of all family members—as much as possible. Resources are almost always limited. Time with our kids is just never enough. But making all attempts to jointly address all family members’ needs and concerns is the surest path to reaching that goal—as much as possible.

3. How We View the Role of the Client

In collaborative practice, clients are not bystanders watching the professionals work out the future and fate of their family based on theoretical legal principals or arcane court procedures. Rather, collaborative clients are intimately involved in every step of the way and in every aspect of the settlement process. Collaborative divorce is a client-centered process, not a lawyer-centered process and certainly not a court-centered process.

Divorcing spouses are not seen as enemies pitted against each other in a lawsuit. Collaborative clients are the masters of their own destiny, determining what their new family structure will look like. The clients are the protagonists. They are the experts for their own family, and decisions are made based on the values and priorities of the clients—not of the lawyers, and not of the law. Collaborative professionals merely serve as guides, supporting client autonomy and their self-determination.

4. How We Can Help

Years of experience have brought humility to the divorce professional. There is a limit to what one person can do to help a family through the difficult transition of a divorce. We realize that divorce is not just a legal event, but a multi-dimensional transition. It is obviously an emotional transition. It is a parenting transition. It is a financial transition. Instead of having one professional focus on all these dimensions, we have learned that the best way to help a family is through an interdisciplinary team.

Lawyers help with the law. Mental health professionals serve not as therapists, but as divorce coaches (a.k.a. facilitators) helping to clear the emotional obstacles that all too often get in the way of a successful negotiation. Mental health professionals serve as child specialists and can also be available to bring the children’s voices in the room, so that truly the best interests of the children can be achieved. Financial professionals can focus on efficiently gathering and analyzing the financial data so that the clients and their lawyers can more clearly understand the facts, figures and financial options (with tax optimization, of course). Instead of just one professional helping a divorcing couple get a deal, the synergy of these various professionals, working together as a team, based on the particular needs of the family, enables families to reach optimal outcomes. And, in the end, that is what collaborative divorce is all about.

In sum, while 99% of divorces are settled without a court-imposed decision, collaborative divorce is unique in that it (1) helps the family (2) reach successful outcomes for all members of the family, (3) based on what is important to each client (and their children), (4) with the assistance of different professionals who offer different specialized expertise in the multi-dimensional transition of divorce.

Through clarifying the uniqueness of collaborative divorce, couples can make their own assessment and check in with their values and goals for themselves and their family to determine whether it is the right process for them.

By Adam J. Berner, Esq., MA


Adam Berner specializes in mediation and collaborative family law and is the founder of the Berner Law & Mediation Group, with offices in Manhattan and Hackensack. As a pioneer in the matrimonial dispute resolution field for the past 25 years, he has served as president of the Family and Divorce Mediation Council of NY, Founding President of the NJ Collaborative Law Group and founding member of the NY Association of Collaborative Practitioners. In addition to his private practice, Adam serves as a consultant for the Beth Din of America, is a certified mediation trainer and an adjunct professor at YU’s Cardozo School of Law, where he teaches mediation and collaborative law and on occasion teaches conflict management for rabbis at RIETS. Additional information can be found on www.MediationOffices.com