Divorce Magazine chats with this pioneering collaborative family lawyer and the co-founder of the International Academy of Collaborative Professionals.
Pauline H. Tesler is one of the recognized authorities on Collaborative Divorce. A Certified Family Law Specialist who has practiced law since 1981, Tesler specialized in divorce litigation until she learned about Collaborative Divorce in the early ’90s. Today, she devotes her practice exclusively to the collaborative model. Recently, Divorce Magazine publisher Dan Couvrette asked Tesler some questions that many people ask about this alternative method of dispute resolution.
Dan Couvrette: What’s your basic definition of Collaborative Divorce?
Pauline Tesler: Collaborative Divorce is a way of handling all divorce-related issues (dissolving the marriage itself, dividing property, and handling issues related to children) entirely outside the court system, using a specially trained team of professionals. The team includeslawyers, of course, but also mental-health and financial professionals, who work together to help a couple understand what matters most to them and create durable solutions that will work for every member of the family after the divorce, including the children.
Dan Couvrette: How does it work?
Pauline Tesler: Each spouse chooses a collaborative lawyer who has had special training to do this, because it doesn’t come naturally to lawyers to work this way. And everybody signs an agreement — the lawyers and the clients — an agreement that nobody will take any matters to court, or even threaten to, as long as the collaborative process is working for everyone. If the process should break down — which happens in roughly five to ten percent of cases — you and your partner can take your issues to court and have a judge resolve them if you prefer to, but the lawyers cannot go to court with you. So the lawyers are hired to work solely toward a settlement that works for you.
DC: Why do you promote Collaborative Divorce?
PT: I’m committed to this model because it’s the most powerful way I’ve encountered to help people do a self-determined, problem-solving process in which the results are carefully thought through. Everybody’s interests, concerns, needs, priorities, and values are considered. There’s a genuine good-faith effort made by all parties and professionals to reach creative solutions that will last. We’re not looking for quick fixes, but solutions that meet the needs of everybody in the restructuring family — regardless of whether a judge is allowed to make orders about the matters of concern. In a Collaborative Divorce, you and your spouse make the decisions, and the lawyers and other professionals on the team help you gather the facts, hear one another’s concerns, and consider a broad range of options and consequences. In my community, I work with collaborative lawyers from all over the San Francisco Bay area. I work in an interdisciplinary team model when my clients choose it, and I always suggest they consider it. An interdisciplinary team includes mental-health professionals working both as divorce coaches and as child specialists, as well as a financial consultant who gathers all of the financial information and helps us evaluate solutions and come up with creative alternatives. I like doing this work because I find that my clients are satisfied with the results.
DC: Does the team work together in person or separately?
PT: We sit down face to face; the lawyers don’t try to make deals for you when you’re outside the room. And we don’t even get to solutions until all of the questions have been answered about the facts. So you’re not going to be asked to make any decisions about financial matters, for example, until every single question that you have about the money and the property has been answered. Then we brainstorm solutions and the most creative options from which to choose, so that we come up with solutions that last for the long haul — solutions that look good not just now, but five or ten years downstream.
DC: Is it anything like traditional divorce litigation?
PT: Nothing could be more different than Collaborative Divorce and litigation. Litigation is based on gladiators jousting in the courtroom and having a judge make all the decisions for you, issuing orders and telling you that this is how it’s going to be. In Collaborative Divorce, on the other hand, nothing is agreed to unless you and your partner think it’s an acceptable solution. We (the lawyers) don’t tell you how it should be resolved; you figure out how it can be resolved, and it’s done respectfully, according to your own values and priorities. So when our clients reach resolution, it’s real resolution. It’s not somebody else who doesn’t know or care about you telling you what you should do with your lives, your property, and your children.
In litigation, the lawyers are in charge. You take your problems to the lawyers, and they say, “Don’t worry, we’ll handle it.” And the way lawyers are trained to handle divorce-related problems, for the most part, is to take them to judges. That’s the most expensive way we have in the legal system of resolving issues. It takes a great deal of your resources to resolve problems that way. And worse, it causes emotional damage to families to take issues into the court system, which is adversarial by nature. In Collaborative Divorce, on the other hand, you participate actively in every step of the process and no solution is adopted unless it is acceptable to both you and your partner.
DC: Divorce mediation is a well known method of resolving divorce in a non-adversarial manner. How is Collaborative Divorce different?
PT: In mediation, one neutral mediator sits with you and your partner and tries to help you reach solutions. It’s just the three of you, and if there are lawyers giving you advice, often those lawyers are not in the room. You may get that advice separately from somewhere else. The lawyers are not, in other words, centrally engaged in the process of negotiating to reach settlement. And they can advise you to reject proposals or even to stop the mediation and take matters to court. In the collaborative process, every professional is committed solely to resolution. And each of you has your own lawyer at your side giving you advice, counsel, and advocacy aimed solely at constructive solutions. We build into the process the services of mental-health professionals who can coach you and your spouse in better communication skills and anger management, and who provide information to the children and help you understand the children’s issues. The team also includes a financial professional who will help answer all money questions. So it’s a much richer process in terms of professional resources. And lawyers are completely aligned with settlement in the collaborative process, whereas in mediation, they may not be.
DC: Do you consider Collaborative Divorce more effective than mediation?
PT: Collaborative Divorce and mediation are cousins, and I’ve done both. But in my experience, the most powerful model in terms of getting creative, lasting solutions that work for kids as well as adults is Collaborative Divorce. Mediators can be very effective in helping motivated people to compromise and get to a deal efficiently. But no single mediator can do the work of a fully staffed interdisciplinary Collaborative Divorce team. In mediation, you don’t have mental-health professionals helping you build better communication skills, which you need after the divorce if you’ve got kids. There is no one whose job is to speak for, and with, your children. There is no one whose job includes helping a temporarily distressed or unreasonable partner to return to constructive problem-solving. And mediators don’t bring the financial skills to help you understand sometimes complicated money and property issues and come up with creative solutions that can be evaluated for long-term consequences, because they’re only one person. They have skills that are useful in helping people reach compromises, but you get comprehensive value-added solutions with a Collaborative Divorce team.
The other main difference is that most mediators will insist that you have independent lawyers giving you legal advice. If your spouse hires a litigious lawyer, the mediation process might fall apart. So Collaborative Divorce is a more protective and solutions-oriented process than mediation can be, not because mediators aren’t working toward solutions, but because they’re only one person who can’t possibly provide the same range of services as a Collaborative Divorce team of up to five professional helpers.
DC: Let’s say I’m getting a divorce. How do I find out if this model will suit my spouse and me?
PT: The best way to find out if this is going to work for you is to talk with a trained collaborative lawyer, who will inform you in much greater depth about what each conflict-resolution option is like and what Collaborative Divorce offers that other models may not. Your interview with the lawyer will be more focused and efficient if you first read the book that my colleague Peggy Thompson and I wrote, Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life(Regan Books, 2006).
A Collaborative Divorce process works for most people who have a commitment to reaching their own solutions.
DC: Is Collaborative Divorce expensive?
PT: Well, it’s not nearly as expensive as litigation. But you should understand that you’re going to have well-trained professional helpers, and you’ll need to pay them. Most families don’t have a budget for the legal services associated with divorce, so even the most reasonably priced professional services can be difficult to pay for. And while Collaborative Divorce is efficient and contained, I can’t tell you that it’s going to be cheap. No professional services are. But the difference between this kind of divorce service and litigation services is that you’re getting real value for your money. You’re not just getting a piece of paper — a divorce judgment — that resolves legal issues but may ignore conflicts that keep on causing controversy long after the divorce judgment is entered. In a Collaborative Divorce, you get a deep resolution that tends to last because you and your spouse are both satisfied with it, or else you don’t sign it. While you are going to have to pay for the services you receive, it’s not going to be as expensive as some people might imagine. And it’s going to be worth the money, or at least, that’s what most of our clients tell us.
DC: If I’ve already decided to resolve my divorce collaboratively, can I still litigate if I change my mind?
PT: Yes, you can. You never give up your right to take issues to court, if that’s what you want. But then the collaborative process has to terminate. The lawyers cannot go to court with you, and therefore, they have to resign and help you make the transition to lawyers who will take matters to court for you. This can be done at any point that you determine that the process is not working as you expected. But this doesn’t happen very often in our experience. I would say less than ten percent of people who choose this find that they can’t get to a full resolution.
DC: Who would be on my Collaborative Divorce team?
PT: On a Collaborative Divorce team, usually the first professionals hired are the collaborative lawyers, and each of you has your own separate specially trained lawyer representing you. I represent only my client, and the other collaborative lawyer represents only his or her client. But we’re committed to working together in a collegial way that pulls in the same direction of solving problems rather than bumping heads. The other professionals on a fully staffed team would be licensed mental-health professionals with experience in the old way of doing divorce, who have chosen to work as Collaborative Divorce coaches because they know Collaborative Divorce is better for children and families. In addition, there is a child specialist (if you have children) who will be the voice of your children and also a wise counselor to them, to answer the questions that they never want to ask their parents. And every child has those questions. Finally, we have a financial consultant, a neutral who helps marshal information about what’s there in terms of money: income, assets, and also debts and expenses. And the financial professional, later on downstream, can project the financial consequences of any settlement scenario we might consider so we know if it’s going to work, not just today, but in 15 or 20 years. Not every couple has all these team members helping them, and not every community has the trained professional resources to provide this kind of fully staffed team, but this configuration has proved particularly powerful and effective in helping couples really resolve divorce-related conflict in a lasting and creative way.
DC: Let’s say my spouse and I have children. Will Collaborative Divorce protect their best interests?
PT: There is no way to go through a divorce that is more protective of children, and more focused on their needs and interests, than Collaborative Divorce. None. The child specialist is a very skilled and experienced mental-health professional who knows about child development and what happens to children during divorce. Every child has issues during a divorce. Think about it: you are an adult with an adult’s understanding and experience, yet you need professional advisors to help you through the stresses and challenges of a divorce. You can’t do it alone; you need experienced helpers. Who’s helping your children? They need somebody to talk to who’s safe, who’s not a parent, and who can bring their concerns in an even-handed way into the decision-making process. That’s what the Collaborative Divorce team model offers, and there’s nothing like it anywhere else, and it’s remarkable. We don’t have custody battles in Collaborative Divorce. We have solutions.
DC: And what if I don’t trust my spouse? Suppose I think he or she is trying to hide assets?
PT: It’s common at the end of a marriage for suspicion to run high, particularly if there have been lies and emotional betrayals. It wouldn’t be unusual for people to imagine there are lies about money too. This kind of concern is often brought to divorce lawyers, and a great deal of money can be spent doing expensive forensic audit trails to try to find the Swiss bank accounts. It’s relatively rare that hidden assets are actually discovered, though. Having said that, in a Collaborative Divorce, we have all of the same tools available that would be available anywhere to look for hidden assets. We just do it consensually. If you and your collaborative lawyer are not satisfied that a complete investigation and disclosure have taken place, no negotiations will begin until you are satisfied that you have all the facts. In addition, both collaborative lawyers make a commitment that they won’t come to the table unless they’re convinced that their own client is in complete good faith about full disclosure. So there really isn’t a downside here in terms of the tools available for investigation of finances in a Collaborative Divorce. However, if you married somebody who would lie to the taxing authorities, they’ll probably try to lie in a Collaborative Divorce too.
DC: What if there’s a power imbalance in the marriage? For example, if I have a wife who’s controlling or bullying?
PT: Well, if your wife is controlling, she’s not going to change her personality. She may well try to be controlling in the divorce process. But in a Collaborative Divorce, everybody commits to working in good faith and in a respectful manner. And the professional team helping you and your wife will be completely dedicated to helping her participate in good faith in a way that gets to a solution. Because if we can’t help you and your wife get to a solution, we haven’t done our job. And in a Collaborative Divorce, each of you agrees that your own lawyer’s job includes helping you become a more constructive participant in the process if you are behaving in ways that don’t help the process reach resolution. So there’s no real place for your wife to behave in ways that thwart effective problem-solving, because that’s all that we’re there for.
DC: Why did you write your book Collaborative Divorce?
PT: My colleague Peggy Thompson and I wrote Collaborative Divorce because we wanted to put out the word as broadly as we could to couples whose marriages seem to be ending, and also to their family members, clergy, psychologists, accountants — all of the people who work with couples and families that are breaking down and restructuring. The book explains in straightforward and accessible ways how the Collaborative Divorce model works. We developed this model, and we know that clients like it because it works so well for the great majority of couples who commit to it. The book is a very good way to get your spouse to consider Collaborative Divorce. It explains why this model is so powerful, how it protects children, and how it helps divorcing adults move through this process with greater health, respect, and creativity.
Pauline H. Telser is the author of Collaborative Law: Achieving Effective Resolution in Divorce without Litigation (ABA Books, 2001, revised and expanded edition forthcoming in 2008) and, with psychologist Peggy Thompson, Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life(Regan Books, 2006). Tesler and Thompson are the co-founders of the International Academy of Collaborative Professionals, which trains lawyers and other professionals in Collaborative Divorce. Tesler is a Fellow of the American Academy of Matrimonial Lawyers, and the State Bar of California Board of Legal Specialization certified her as a specialist in family law in 1985. For more information on Tesler’s and Thompson’s book, visitwww.collaborativedivorcebook.com.