303-350-5835 tkv@tkvlaw.com
The Collaborative team consists of two clients, each of their collaboratively-trained attorneys, a financial neutral, and a Collaborative Divorce Facilitator, or “CDF.”  While clients rarely suggest that they can do without their own lawyer, or the person who is going to gather financial information in a fair and even-handed manner for both parties, it is not uncommon for clients to suggest, thinking it is a cost-cutting measure, that they can do without the CDF.  Let me share my thoughts on why I think that is a false economy.

Clients welcome their lawyer being in their corner, dedicated to helping them.  However, it is also made clear from the beginning that the CDF will not be partisan.  The process is set up for the voice of the CDF to come from a place and perspective that is different from each client’s own lawyer.  This difference can have great effect when the CDF speaks, because it is with the voice of “the reasonable person,” the objective non-aligned observer.  Clients expect to hear supportive statements from their own attorney, and they expect to hear non-supportive statements from the other attorney, or at least statements that are supportive of the other, their spouse.  But when the CDF voices an insight, observation, or thought, it rings with a different level of authority, resisting the natural challenging response that springs up in reaction to what one’s own or the other’s advocate says.  The CDF is the keeper of neutrality, and of assurance that discussion will proceed respectfully.  The CDF ensures that both parties are able to speak, and so far as is possible, each hears what the other has said.

At times of particularly intense discussion, as attorneys are realizing that they may have an issue and clients who are headed toward an impasse, just as adrenalin and ego are starting to fire in the minds and bodies of clients and their lawyers, the CDF can reflect on what s/he is hearing.  In an instant, the CDF can stop and reframe discussion in a manner that directs conversation away from conflicting positions, and into discussion of how one or both clients is feeling in the moment.

Longstanding struggles between divorcing clients, whether for control, vindication, respect, or something else, can be triggered in an instant.   Many times, the client him or herself is not aware of what is driving the position he or she is voicing or the reasons s/he is so invested in it.  The CDF’s help to  parties to identify that their statements are coming from fear, insecurity, or anger, and the attendant discomfort of those emotions, can shift conversation into a more productive vein, and parties into a more generous problem-solving mode.

Alternatively, a struggle that is derailing productive discussion at a full team meeting can be recognized and scheduled for processing at greater depth with the CDF outside of a full team meeting.  This is not so that the CDF can do therapy, but rather so that barriers to communication can be identified, and strategies for moving past them adopted in order to avoid wasting time, clients’ patience, and their  goodwill toward one another and the Collaborative process.

This is not appropriate territory for parties’ advocates.  The difference to clients in a statement that interrupts feelings of discomfort articulated by a neutral as opposed to hearing it from their own or the other lawyer is huge.  A statement from their own lawyer, in front of their spouse, may trigger feelings that their lawyer is being disloyal and that they have been abandoned.  Conversely, anything said by the other lawyer may evoke feelings of shame or embarrassment, reactions unlikely to build a sense of safety at the table.   When it is not safe, discussion stops.

The CDF is not advocating for either party, but rather for a productive process.  His or her comment can give everyone in the room a pause to reflect on the value of the insight, to benefit from the change in energy that such an interjection creates, and to de-escalate emotion.

In cases involving young children, a CDF may be able to help parents reach sustainable parenting plans by working with them outside of full team meetings.   Parenting Plans are not finalized outside of a full team meeting, but hours of discussion and consideration of numerous parenting schedules can take place without lawyers and the financial neutral.  In this way, fear that the CDF is adding to the cost of the process may be misplaced and rather the CDF role may result in economies by reducing time billed at attorneys’ hourly rates.

The CDF can take responsibility for efficient case management, organizing pre-full-team-meeting telephone calls for the professionals to educate and update each other and to prepare for what may be difficult discussions.  The CDF can facilitate brainstorming for handling those discussions, helping to build team competence and confidence.   Some CDFs draft minutes of full team meetings.  The CDF can keep the team move through the prepared agenda, giving clients the sense of structure and purpose in each team meeting, and a sense of forward momentum.  Such momentum is often very important in providing clients a sense of the value of the process given client consciousness of the number of people around the table at a full team meeting.   Quickly taking non-productive subject matters off-line and scheduling time to work on how clients can productively communicate about such issues keeps the full team meeting moving forward.

What helps keep the costs of the Collaborative Process down is the level of productivity achieved in full team meetings.  The more that clients can fully participate to exchange ideas during the course of meetings and the more productive the conversation that takes place, the fewer the number of meetings required to address all issues.  The fewer the meetings, the lower the cost.   At the outset, parties are often unaware of the value of the CDF in helping to maintain high level productive conversation, so that overall, hours of professionals’ time are minimized.  The Collaborative Process is very different from what most clients have ever experienced before.   I would submit that as much as lawyers must make a paradigm shift to succeed in this model, perhaps it is their challenge to insist that their clients do likewise, in understanding that more people at the table may actually shorten their process, and drive down its cost.