Felbecklaw - Prototype 1

Harmonic Divergence: A Win-Win Way to Divorce
by Karen West

Published in Seattle Woman magazine - April 2009 (http://www.seattlewomanmagazine.com/articles/april09-2.htm)

Divorce is rarely peaceful or friendly. For many, it is a painful experience fought out in courtrooms, with bitter exchanges and lots of tears. Communication is usually left to the opposing attorneys and relationships often end up in tatters.

"I'll never forget throwing my husband’s clothes out the door then changing all the locks," recalls Linda of her bitter divorce years ago. "We never spoke to each other again."  But it doesn't have to be that way. Hundreds of people across the country - including celebrities such as actor Robin Williams - are discovering another, healthier approach: collaborative divorce. It's a team approach to ending a marriage with dignity and respect.

"Just because you are in conflict doesn't mean you don't want to resolve it," says Seattle attorney Rachel Felbeck, who has been at the forefront of the collaborative law movement in Washington state. "Our goal is to do more for our clients than divide property. Sometimes we can actually help them work through their emotional pain and get to a place where they are OK with the settlement and they are OK with the divorce. We can create a safe space for them to communicate with each other."

In a collaborative divorce, spouses or partners, along with their attorneys, commit to resolving all divorce issues without going to court or threatening to do so. Communication is key, and the common goal is to achieve a just, equitable and mutually acceptable settlement. There are no presumptions that one side is right and the other side is wrong, or that somebody wins and somebody loses. Instead of frustrating and tense courtroom battles, couples and their attorneys meet to jointly and calmly map out their separate paths.

Collaborative divorce is not new but it is gaining in popularity - even garnering mention in the popular film Juno. The concept was started by Minnesota attorney Stu Webb nearly 20 years ago and has since spread throughout the United States, Canada, Australia and Europe. "It's a cultural revolution that is starting to gain a lot more momentum," Felbeck says. "It is shifting the way we view conflict as a society. People are taking control of their conflict process and of the results."

Traditionally, the court and attorneys determine when progress occurs. In collaborative law, the parties determine when and how the issues get resolved.

"Collaborative law is the low carbon footprint way of getting a divorce and transitioning your family," says Karen Nakagawa, co-chair of the Family Law Practice Group of King County Collaborative Law, a nonprofit group of attorneys and other professionals who have adopted the team approach. "We are trying to reduce the negative impact of divorce on the family and the generations that follow." She says collaborative law practices in the Puget Sound area, in particular, "have exploded."

Collaborative divorce also has been described as the "wave of the future" and the "good divorce." Those who have been through it say it gave them a more civil, gentler way to end their marriages.

"I loved the viewpoint that people can find solutions and not beat each other up in the process," says Liz, who sought out Seattle attorney Mark Weiss because of his work with collaborative divorce. "We chose this approach because we liked the whole idea of not seeing ourselves as adversaries."

With two children, she says that she and her husband wanted to preserve their family relationship and be able to share holidays together. "It reinforced our mutual respect and the understanding that the divorce was not dismantling the regard we had for each other."

Unlike traditional litigation, where each side hires expensive experts who come up with opposite opinions, the collaborative approach calls in jointly hired neutral experts who work on behalf of both participants. Couples have access to trained specialists to help them through the process, including divorce coaches, facilitators, child and financial experts. One or more of these professionals may be part of the process from the beginning, or may be brought in when the parties decide they need expertise in specific areas.

Like Liz and her ex-husband, whose divorce was finalized last December, many couples are choosing civility over stress and staying connected as a family even after splitting up.

"The reality is if you have children, you are going to have to find a way to talk to each other," says Kirkland-area divorce coach Anne Lucas. "The expectation is not necessarily to walk out being best friends, but you will be able to manage yourself so you can maintain a relationship with one another as parents. Mothers and fathers cannot divorce. Husbands and wives divorce."

Lucas sees her role as helping to manage and nurture the emotional aspects of the divorcing couple. Like the last act in a long-running Broadway play, Lucas helps "tear down the set, put away the props and take care of the actors."

During the traditional legal process, attorneys often try to contain painful emotions until the process is over, says Lucas. While this can be done by expressing empathy and caring for their clients, she says it puts the burden on those clients to put their lives back together after the divorce is final. "In collaborative, the team works not just to manage the legal divorce but gives equal weight to working with the emotional divorce for both parties."


She adds that the teams work to teach couples new communication skills and how to recognize ineffective patterns. "My work is to get the couple to differentiate between husband/wife interactions, behavior patterns and those of effective co-parents. Their last act as a couple in divorce are those final administrative details that end the existing family structure and set the stage for the success of the family structure that is to come (post divorce)."

Lucas says that the collaborative process can range from "ridiculously easy to extremely difficult." "For a majority of couples, even though they have chosen collaborative, it doesn’t mean they are going to come in with the mind-set that this is going to be lovely." But she says that having coaches, experienced child specialists with mental health training, financial experts and other professionals on hand goes a long way to making divorce easier to handle. Couples often realize that they need to work together to preserve their relationships with each other and their children.

Felbeck and a group of Seattle attorneys started pushing for Washington’s first collaborative law group in 1998. Today, there are 250 trained collaborative professionals statewide. Last year, the nonprofit Collaborative Professionals of Washington was formed to provide resources, training and networking for collaborative professionals and groups all over Washington state. The association consists of independent attorneys and mental health, financial and counseling professionals who are focused primarily in the area of family law and who are seeking to change the adversarial approach to divorce. Collaborative law groups also have formed in many areas in Washington, including King, Pierce, Snohomish, Whatcom and Spokane counties - from as far south as Vancouver to as far north as Bellingham.

Like the Minnesota attorney who began practicing collaborative law out of frustration with divorce litigation, Felbeck says she left her 10-year litigation practice several years ago because she was tired of tense courtroom divorce dramas. "We were fighting each other all the time," she recalls. "I'd lose sleep worrying about my clients and I was frustrated with the other lawyers."

She says collaborative law has brought a whole new flavor to handling divorces. "There is a sense of positive closure. There is typically no conflict with other attorneys because they are part of the team. I have a much higher sense that I'm part of the solution, not part of the problem."

Because couples must agree that they do not want the court involved in their divorce, the collaborative approach is not for everyone. Some litigators argue that this type of law lacks sufficient protection for their clients. But in her book, Collaborative Law, San Francisco attorney Pauline Tesler says the new approach has reached a turning point: In the U.S. and Canada, some now consider collaborative law a mainstream divorce-resolution process.

Here's how it works, according to King County Collaborative Law:

·         Both parties and their attorney’s sign a contract in which they agree to commit to the collaborative process.

 

·         Parties and their attorneys work as a team.

 

·         Informal settlement and negotiation discussions occur with both counsel and clients in attendance, and are conducted in a non-confrontational atmosphere.

 

·         Information gathering is done cooperatively.

 

·         Additional members of the team can include coaches, financial planners, child specialists, business evaluators, accountants, mediators and others who may become involved to assist in the decision-making process.

 

·         All participants strive to arrive at a settlement that meets the needs and interests of each party and the family.


For Liz, who still celebrates holidays with her ex-husband and family, using the collaborative divorce approach helped her dissolve her marriage while maintaining her self respect. "It was touching and inspiring," she says. "Signing the agreement was a reminder to be respectful and caring and mindful of the impact of the things I say. I appreciated being held to that standard of behavior. They (the collaborative divorce team) gave us a lens to look through and a context to operate from."
 

Karen West is a Bainbridge Island-based freelance writer.

©2009 Caliope Publishing Company