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Collaborative divorce is a relatively new mechanism, which takes a negotiated settlement
to a whole new place. In a collaborative divorce, the Court is not involved in the
divorce in any way other than approving the collaborative divorce agreement. There
are no hearings; instead there are meetings between the parties and their respective
attorneys. These meetings generally alternate between the lawyers office, and are
most effectively single issue and relatively short. In one meeting the parties might
discuss and reach agreements concerning a key "kid" issue – such
as private schooling and how to pay for it. In other meeting they might reach agreements
as to how to divide their respective retirement accounts or, alternatively, how
to structure the financial settlement so that they can stay out of them entirely.
In the end, there is a collaborative divorce agreement, containing agreed provisions
on all of the issues in the divorce, which the court approves.
So when is collaborative divorce a good idea? First of all it, requires two thoughtful
parties and attorneys who understand and are trained in the collaborative process
and who can all work together reasonably well. Second, it requires that there be
no severe personal issues with regard to either or both parties. Neither addiction,
personality disorders, nor the presence of family violence are suitable issues for
collaborative divorce. In such a divorce there needs to be intervention, most appropriately
by a court. But in many cases collaborative is a good alternative to a contested
divorce through the courts. The parties have to both commit to the process, from
the outset. The "hammer" that keeps them committed is that, if they fail
to reach an agreement, and have to resort to the courts for their divorce, both
attorneys have to withdraw and the clients must start over. This is a very effective
incentive to keep both parties at the table and working.
Less often used, but also very effective in the right case, is arbitration. In arbitration,
the parties consent to trial by a party who is not the Judge of the court in which
their case is pending. An arbitrator is generally another lawyer, who the parties
appoint as their “rent a judge.” Whether this is an attractive option
will depend on several things, including the quality of the Judge, the delay in
the Judge’s court to actually getting to trial, and the desire of the parties
for greater privacy than that available in the Courts. For busy professionals, a
key advantage is that arbitration enables the parties to virtually lock in a trial
date. This is not the case in many jurisdictions, particularly in the urban counties
with their overcrowded dockets.
Tom Carnes has participated in many mediations, as an advocate and as a mediator,
several hotly contested and complex arbitration proceedings, and has significant
experience in collaborative divorce. While he is and always will be principally
a trial lawyer, he is equally accomplished in these three areas as well.