Joe Spirito on Collaborative Divorce in California

What is collaborative divorce and how is it different from mediation?

Collaborative law is a process for voluntary dispute resolution in which the parties – the husband and wife – each retain their own attorneys to help resolve their divorce amicably without court intervention. The two attorneys and the parties sign an agreement that they will not litigate while working within the collaborative process. In the unlikely event that the lawyers don’t succeed in helping the parties resolve their dispute, both lawyers must withdraw and the parties must retain litigation counsel.

It differs from mediation in that sometimes mediating parties have no counsel and they meet with a mediator by themselves. In collaboration, you’re always with your attorney when you’re having a conversation about settlement with the other side.

In mediation, there is sometimes a power imbalance where the parties are not equal. For instance, one is captain of industry and the other is a stay-at-home caretaker for the children. The parties may feel uncomfortable sitting in a room with a mediator and their spouse, but in the collaborative process they would have a lawyer present as well. Of course, you can still hire your own consulting attorney in mediation, but some would say that defeats the purpose of saving money because then each party has their own attorney as well as a mediator. However, both mediation and collaboration are alternative dispute resolution processes and are preferable to litigation.

Can all family law issues be resolved using the collaborative approach or are some better suited to it than others?

Some family law issues are better suited to collaborative law than others. For example, if there is domestic violence and a pattern of abuse, then the parties might not be good candidates for a dissolution through a collaborative approach; they might need the finality of a judge’s decision in order to protect their interests.

Is it necessary to have two lawyers in a collaborative case or can a divorcing couple share one lawyer to save money?

It is really an axiom of collaborative divorce to have two lawyers working together on a case. By definition, it would not be a collaborative law case if only one lawyer were involved and the other party were representing himself or herself. The stipulation that is signed to allow the case to proceed collaboratively requires counsel on both sides.

What might influence a divorcing couple to choose collaborative divorce over other processes?

Many people think it will be cheaper. On average, the collaborative process is about one-third the cost of a litigated matter – at least, according to studies conducted by the International Academy of Collaborative Professionals. Cost is certainly an influencing factor for a divorcing couple; however, the other benefits are the individual attention you receive and the speed with which collaborative counsel can work if both parties are willing to work together. We don’t have to work within a system where the court dictates when we must show up and how long it will take for them to listen to our cases and make a ruling.

In addition to being generally less expensive than litigation, is the collaborative process is also faster than traditional litigation?

It is if the parties want to proceed expeditiously. The parties dictate the timing of the meetings along with their counsel; we’re able to pick a date and sit down to meet rather than trying to pick a date at the court’s convenience.

How does somebody choose the right lawyer for his or her unique needs?

If you’re in Los Angeles County, then the Los Angeles Collaborative Family Law Association – which I was president of at one time and I’m still on the board – provides training to the community on practicing collaborative divorce. The Collaborative California Practice, called CPCal, and the International Academy of Collaborative Professionals also provide training. It’s very important to choose an attorney who doesn’t just say they do collaborative work, but who’s actually taking the training and taking the time to realize the paradigm shift involved in switching from litigation to collaboration.

What are the lawyers’ roles in collaborative divorce?

Lawyers are basically the navigators in collaborative divorce; we try to help navigate people through the divorce process. The clients are in charge of the process, because they’re the ones who have to decide what they wish to do with guidance from the attorneys. To use an example of an airplane: the attorneys are the co-pilots, but the passengers are the ones who tell us where they want to go, and we hope to take them there safely.

What has been your experience with people asking you to help make decisions for them during the collaborative divorce process?

It’s important that people have informed consent to make decisions; it’s important that there is transparency from each party when they’re going through a divorce. The client’s role is to be an open book, to have good faith intentions when they enter the collaborative process, and to make the final decisions with some guidance from their counsel and their joint neutral financial expert, who might help provide them with a framework and options for what settlements they would like to reach. We also use mental health professionals when necessary to help with communication. The client’s role is to be in charge of their own case, but with the guidance of allied professionals.

Are children involved in the collaborative process?

In some instances, we’ve actually had pictures of the children with us while we’re talking about them and discussing what’s in their best interest. They’re not necessarily involved in the case itself – for instance, being interviewed or directly providing their input – but we do use a method of finding out what’s in their best interest and then relaying that information to the collaborative team.

What happens if a couple doesn’t reach a settlement during the collaborative process?

Statistically, approximately 88% of all cases that start off in collaboration are resolved through collaboration. If you’re looking at the 12% that perhaps transition to litigation, that’s what happens when the collaborative process reaches an impasse that can’t be otherwise resolved. One or both of the attorneys would submit a notice of termination of the collaborative model and then the parties are able to proceed to litigation.

Have you ever experienced a case where somebody was clearly using the collaborative process to delay the divorce outcome? Perhaps if they never intended to go through with the process and planned to torpedo it at the end so both parties would have to go back to square one?

Yes. There are people who believe they can use the collaborative process to exact a better result than what they would get through litigation, but I don’t know if it’s necessarily the case that their entire goal is to stall the process. Certainly people with personality disorders who don’t want to be told what to do by a judge might think they can control the process in collaborative divorce, and sometimes their personalities get in the way of settlement.

If one of the parties has a personality disorder, is it still possible to pursue the collaborative process?

Yes. As part of their training, collaborative lawyers learn how to deal with high-conflict individuals. We are also trained with mental health professionals providing guidance on how to identify people who have personality disorders. There’s a range of people on the spectrum, some of whom are on the low end and are very easily able to succeed in life. You have to set boundaries for parties with personality disorders, just like you would do in dealing with them in litigation or any other kind of encounter. However, with good coaches and mental health professionals involved in the collaborative case, it is possible to work with people who have personality disorders.

You mentioned mental health professionals, are there other professionals involved in the collaborative process?

Yes. As needed, we can work with a child specialist, which is someone who will meet with the children; talk to them; get an indication of what their concerns, goals, and interests are; and find out what’s in their best interest.

There are also other mental health professionals that operate not as therapists in collaborative divorce, but as coaches for each party. Coaches help guide the parties through the process so they can leave their emotional baggage at the door before they sit down and start talking about financial or custodial issues.

Then, of course, there are the financial experts who, when necessary, help with cash flow issues for support purposes or help determine what the value of a business might be.

The key is to have neutrality in the financial expert and the child specialist so that they’re not just hired guns representing one party’s interests, but they’re really advocating for the process. That’s how we use our allied professionals.

It sounds like there could be a number of professionals on a collaborative team. Could this be more expensive than a litigated divorce that only has two lawyers?

Usually the lawyers’ hourly rates are higher than those of the individual allied professionals, such as the financial expert, the mental health professional, or the child specialist. Rather than both attorneys trying to work out a parenting plan at their hourly rates combined – for instance, talking about whether Johnny should be picked up in the evening on Friday or whether it would be more beneficial to have Johnny picked up after school by one of the parents and taken to the other parent’s house – it would be less expensive to have a single mental health professional working with the parties. The mental health professional can then report back to the attorneys about what kind of parenting plan has been worked out with the parties.

Even if a parenting plan isn’t worked out, at least an effort has been made to vet the possibility with someone who’s not charging double the attorneys’ rates. It’s the same with financial issues – the lawyers can pour through tax returns and spreadsheets and try to analyze how to divide a property, but the analysis can be more efficiently handled by applying a financial person’s expertise and having them report their thought process to the attorneys. It doesn’t mean there’s no need for the attorneys to analyze the situation, but it does save hours because it might take a financial person much less time to analyze it.

If one spouse has moved out of state, can collaborative sessions be held via telephone or a chat program like Skype?

Sure. I’ve handled cases where one party lived in a remote region of China, or New York, or Minnesota, or Northern California. Maybe Los Angeles County happens to be the jurisdiction for their family law case, but the parties don’t have to be here because, unlike litigation where they have to show up to court, they’re able to communicate at a time that’s convenient for everybody. We’ll set up meetings and work through the issues without actually having everyone present and certainly not in a courtroom.

If a couple doesn’t trust each other anymore, can they still use the collaborative process to settle their divorce?

Yes. That relates to the need for transparency and good faith I alluded to earlier. The parties might not trust each other, but they can trust the financial expert and their lawyers. They can trust the professionals they’ve hired to help guide them through the process to reach a solution that works well for both parties, even if somebody had an affair and the parties don’t trust each other in that regard. If someone cheated on a tax return and the other spouse doesn’t trust them financially, the parties can work with the professionals at a level of comfort that will make it possible to provide informed consent and settle.

What drew you to the collaborative process? Why did you become a collaborative lawyer?

I was litigating from 1982 to 2001 and did not have a mediation practice. I had been to court on a number of occasions and it seemed that when people walked out of the courtroom after receiving a result, no matter how good of a job I thought I’d done, no one was happy: not the other party, not the other lawyer I was working with, nor myself. I felt there had to be some process that could give people a voice while at the same time competently representing their interests and guiding them through the divorce process. Using the broken-down judicial system wasn’t the way to do it.