Recently we encountered this statement on a law firm website (not members of CFLCW):

“While …[trained]… in Collaborative Divorce ..[we use] this approach when requested, and we caution…not all cases benefit from this [approach].”

One of the ethical standards endorsed by the International Academy of Collaborative Professionals (IACP) is the responsibility of the collaborative attorney to provide information to clients about the range of process options available to them. Using collaborative only when requested is, we hope, is not a substitute for providing the client with the complete range of options.

The statement does beg the question about when collaborative is appropriate. Since it emerged nearly two decades ago, collaborative is widely described as an alternative to court.

Over the years there have been suggestions – like the one noted earlier – that some situations are not “appropriate” for collaborative; instances where there is a financial or power imbalance in the marriage, where high conflict is the norm in the relationship, or where there are impairments due to substance abuse or domestic violence.

One could make a reasonable argument that those situations are exactly the ones that could benefit from collaborative.

Only collaborative as a matter of process uses the services of trained neutral professionals to assist the couple with making financial decisions, developing customized parenting plans, addressing emotional conflicts, and confronting abuse and other complications. Litigation as a process cannot lay claim to those attributes. Dueling paid expert witnesses without any semblance to neutrality are hardly an advantage to that process, or more importantly, to the family.

Even mediation, which is an unregulated practice in Wisconsin save some rules about drafting documents, does not embed a wide range of expertise into the process. While some mediators do involve neutral experts, the process does not provide the parties with legal advice; even attorneys serving as mediators cannot provide legal counsel to the participants.

So back to begging the question. When is collaborative an “appropriate” alternative to court?

The answer may rest with flipping the question: When should going to court – or any other divorce process – be the appropriate alternative to collaborative?

Perhaps the time has come to revisit how and when family disputes, including divorce, belong in the court system at all.

Perhaps the process to end a marriage should involve a couple working with legal settlement specialists alongside financial and mental health professionals focused on resolving the disputes with everyone’s interest in play.

Perhaps “going to court” should involve terms and conditions that make it the exception to the norm.

Perhaps collaborative should be the default process. It seems the most client-centric and client controlled, which after all, should be the goal should it not?

–The Editor

Postings are solely the expressions of the author and do not reflect the policies or positions of the Collaborative Family Law Council of Wisconsin or its members.