By Rebecca Guyette, Wayzata Divorce Attorney

You have spent time learning about Collaborative Law and come to the conclusion that this route to singlehood is preferred to more traditional divorce litigation, but how do you know if your divorce can be done as a collaborative divorce? Your attorney, if trained in Collaborative Law, can assist you in ascertaining whether there is a high probability that you can commence a collaborative proceeding. While no Collaborative Law attorney can predict with certainty whether your divorce can be successfully completed within this process, discussing your concerns and some aspects of your situation with your attorney will be helpful in deciding whether to proceed collaboratively.

It is important to have an understanding of how the Collaborative Law model works as well as a desire to proceed with your divorce in this manner. Once you have this knowledge base and you desire to collaborate with your spouse on all issues needing resolution in a divorce proceeding, work through the following list of considerations with your collaborative law attorney to better understand the likelihood of success.

• Can you articulate reasonable and appropriate goals? In all collaborative proceedings, the collaborative attorneys seek to understand the parties’ goals. Whether the goals are unique to just one spouse or joint goals that both parties may have, it is important for both attorneys to note these goals and see if they are reasonable and appropriate for the facts and circumstances within the family. The goals should be reasonable and appropriate. The goals should not detract from the ultimate goal, which is to resolve conflict in a collaborative manner in a safe and transparent atmosphere while preserving relationships for positive co-parenting. A skilled collaboratively trained professional will be able to ascertain whether goals are reasonable and akin to goals in which this model is designed to assist parties in attaining. In addition, goals should be appropriate, meaning that goals should be ones that are able to be attained whenever possible, and if not, will the person be able to accept the inability to fall short of his or her goal attainment. Sometimes it takes a collaborative professional to see whether a case is ripe for collaboration after an assessment of the parties’ expectations, as the clients may sense that the case could be a collaborative case and feel that his or her goals are reasonable and appropriate, but after discussion of the goals, the attorneys sense that the case should not proceed within this model. Your collaborative professional will be able to assist and guide you in your decision about proceeding in the collaborative model.
• Can you be responsible and accountable for things asked of you? In a collaborative proceeding, the clients will be asked to do many things throughout the process from gathering documents to possibly even meeting with your spouse and another professional such as an accountant without the collaborative attorneys present. There are too many homework assignments specific to each case to be discussed in this article, as cases vary and parties will have to do tasks unique to their situation. The participants must be able to be responsible for completing assigned duties to keep the process moving toward resolution. As such, neither party should be allowed to sabotage the process by not completing assigned tasks. If this is a concern of yours, discuss this issue with your attorney.
• Can you behave at four-way conferences? The collaborative law model is based upon a series of four-way meetings, meaning that the parties meet together with their collaborative attorneys to discuss and resolve issues. These conferences require the participants to conduct themselves in such as manner as to promote productive discussions. To assist with this process, the collaborative model has a code of conduct and rules that can be discussed prior to the conferences as a reminder of what conduct is expected. If one person in the group cannot conform his or her behavior so as to allow for a meaningful dialogue, this model may not an option. There is no judge to impose sanctions. There is only collaboratively trained professionals, while skilled at negotiating settlements, breaking impasse, and reducing tension in the room, the professionals are ill equipped to handle a client who is unable to conform his or her behavior. Not everyone who is involved in a collaborative divorce behaves at all times, and this is to be expected given the issues needing resolution and the intense emotions at play. However, the process cannot succeed if one party simply continues to act out and is unable to conform to expectations. Discuss your concerns with your Collaborative Law attorney.
• Can you form the appropriate relationship with the collaborative professionals? In order for the collaborative model to work effectively, an appropriate relationship must be formed between the parties and the professionals involved. If either party is unwilling to cooperate, act respectfully, or participate fully whenever working with the professionals, the process cannot continue. One of the spouses may be so angry, hurt, or emotionally distraught, and opts to take out the frustration through the process. The choice to form meaningful and respectful relationships is a choice that all participants have, and without this level of commitment to working within the process with the collaborative professionals, the parties should consider an alternative manner to continue.
• Will an angry, sad, or despondent spouse shift from being a victim/blamer to a problem solver and participant? Because both spouses are more often than not at different emotional places, meaning one spouse is ready to move on, but the other wants to remain married, can the party desirous of remaining married fully participate and assist in problem solving and decision-making, or will that spouse continue to blame, reject proposals and ideas, and play a victim? It is vital that both spouses are active participants, as one spouse cannot carry the process while the other spouse unwillingly, whether overtly or subtly, sits back and continues to reject thoughts and ideas and refuses to offer alternative solutions in an attempt to move forward.
• Does one spouse believe that the collaborative process is a vehicle for manipulating the other spouse into a settlement that would not otherwise be available in court? If this is the situation, collaboration should not be the manner in which the parties proceed. The collaborative model is not one in which one party uses the process to hide assets, bully the other party into a settlement, or refuse to accept reasonable proposals until his or her proposal is accepted, refusing to make compromises that are reasonable, or refusing to make child focused decisions that are in the best interests of the children rather than the best interest of that spouse. Occasionally, a spouse may feel that the collaborative law model is preferred because of the model’s very design. Instead of using this process as a manner in which to promote future relationships for co-parenting, arrive at fair settlements, or provide a safe and transparent environment for settlement, a spouse may see this as a vehicle to attain goals such as delaying the process, hiding assets, dominating the outcome, and compromising the other spouse’s ability to reach a fair settlement. Sadly, this could be the reason why one party may agree to use this model. Your collaborative law attorney can assist you in ascertaining whether this could be a problem in your case.
• Are there mental health or addiction issues that one or both spouses may have that make it impossible to proceed within the collaborative law model? Both parties may desire to proceed in the collaborative model, but some of these cases may not be able to be successful in this model due to the mental health of one or both of the spouses. Closely working with a collaborative law professional will be the best method for ascertaining whether your case falls within this category. There are simply some people who cannot participate within this model. Some cases of domestic abuse are good examples of cases where collaboration is not best. In some cases, it may be best to have a judge assist, and your collaborative attorney is able to advise you.No one truly knows if a case can finish within the collaborative process despite the desire to commence a collaborative case. Even the well-seasoned collaborative professionals have difficulty predicting the success of each case. If you think that your case has any of the risks outline above but you have an interest in Collaborative Law, be sure to discuss your concerns with a collaborative law professional before proceeding further. Your attorney is able to address your concerns and assist you in formulating a plan for proceeding—either collaboratively or within a more traditional approach, such as litigation. No matter what, however, it is certainly worth discussing any concerns that you have with an experienced collaborative law attorney so that you can make an informed decision about your divorce process, as the process chosen is instrumental on how you can best survive this difficult life transition.