When and Why Collaborative Practice Should Be Used

In our last post, we defined Collaborative Practice (CP), discussed who was involved, and talked about preliminary steps and length of time. In this post, we will address who should use Collaborative Practice, why it is successful (as well as a few potential downsides), and what happens at a successful conclusion.

Who Should Use Collaborative Practice?

In many cases, the Collaborative Practice process can be the best option for those pursuing divorce. While it is certainly not for everyone, it does give parties more support and resources than the other available options – especially parties who don’t speak well for themselves and would not do well in litigation. Collaborative Practice will make the parties more involved and knowledgeable about the case than he/she would have been otherwise. This is especially true for a party was who caught by surprise with a request for a divorce, and may still be working through fresh, painful emotions.

Why is Collaborative Practice Successful?

Given that representation must be terminated if the Collaborative Practice process ends too early, this provision creates a safe environment in which to creatively negotiate, since what each party says during Collaborative Practice cannot be used against them later in court.  Additionally, the parties are usually incentivized to work together to reach a mutually successful outcome, as neither one usually wants to have to start fresh with a new attorney.

Having a professional team present means the various experts can pick up on different aspects of the case. For example, a mental health professional may sense from one party’s body language that a particular topic is causing great difficulty, and intervene as a result. Attorneys would not have necessarily noticed the same problem. If the mental health professional was not present, the client could easily have shut down and stopped communicating – but because of professional intervention, a satisfactory outcome can now be reached for both parties.

Additionally, Collaborative Practice allows for creative planning in the outcome. For example, child support can be allocated differently than state guidelines recommend if it is deemed to be more advantageous for both households. Creative parenting plans can be developed. Financial planning can be made more equitable by exploring the situation from various perspectives. These are just some examples of creative planning possibilities.

Occasionally, with a small but measurable percentage, couples going through Collaborative Practice actually decide to not go through with the divorce and end up reconciling. Often this is because for the first time in years, they are actually talking with each other, communicating on a deep level about meaningful issues. The experts involved in Collaborative Practice can help the parties avoid trigger phrases and recommend solutions that alleviate pressure points, such as how to get help for a handicapped child.

What Are the Downsides of Collaborative Practice?

The biggest criticism of Collaborative Practice is that it tends to be more costly than mediation, due to the number of professionals involved. It can also be more cumbersome, as having more people involved means more difficulty in coordinating everyone’s schedules in such a way as to keep the process moving along.

Collaborative Practice is, however, usually more advantageous than litigation, since efforts are more focused and there is less wasted time and money.

What Happens at the Conclusion of a Successful CP Case?

Though attorneys are not able to go to court in an adversarial capacity following their participation in Collaborative Practice proceedings, they can help the parties file the divorce and often appear before the judge on their behalf when the matter is resolved to assist the clients in finalizing.  In Massachusetts, the parties must appear before a judge to complete the divorce process.

It is important to realize that in Collaborative Practice, the experts involved must shape the process to fit the needs of the clients. While the professionals control the process, it is the parties who control the outcome.