“My wife and I have agreed to divorce via the collaborative process, but she and her lawyer are not cooperating fairly. Is it likely that we’ll reach a fair settlement?”
To be an effective collaborative lawyer, one must receive special training in communication skills, conflict management, and negotiation based on both parties’ best interests. The collaborative lawyer allows his or her client to speak for himself or herself in private meetings and focuses on respectfully listening to both sides’ points of view. The process requires openness, honesty, and mutual trust in order to be successful. This is a radically different environment from what a divorce litigator is accustomed to. In a traditional divorce, the lawyer often takes charge, speaks for the client, establishes a position directly opposed to the other party, and focuses on confronting and attacking the other party through cross-examination while defending the client against similar attacks.
Is it possible for a collaborative family lawyer to negotiate with a traditional divorce lawyer? Maybe, but there would have to be some kind of compromise outside the collaborative system. The traditional lawyer would have to negotiate with some respect and courtesy in order to get anywhere, and the collaborative lawyer would have to be prepared to litigate (or to resign from the case) if the talks continued to break down. However, in order to create a truly collaborative resolution to the divorce, both parties’ lawyers have to officially agree that going to court is not an option, and then cooperate as a team with the parties and other professionals involved, to get the job done.