Setting Up Camps

It seems most everyone knows a family member, friend or co-worker who experienced a divorce that turned ugly—a divorce in which enemy encampments grew around the two spouses, with friends and family taking sides, and divorce lawyers serving as generals in the two warring armies. It can feel like a form of tribal warfare.

How do two people, who once cared enough for each other to enter into the most intimate of relationships, become embittered enemies, unable to communicate except through lawyers and court documents?

Certainly the pain of being “de-selected,” or the hurt of discovering a spouse’s infidelity, can lead the surprised spouse to want to strike back. Even so, how does one explain the divorce that takes two years, is financially ruinous, and leaves the former spouses unable to talk to each other even as they attempt to parent their children? Is it simply the nature of divorce, or is it something else?

After years of practicing law as courtroom attorneys in the adversarial legal system, and then years of practicing exclusively collaborative family law, in which the court system is explicitly rejected as part of the process, it is clear to us that the adversarial system is a major contributor to the bitter nature of divorce.

In court, attorneys are expected to be exclusively concerned with their own client’s interests. This professional responsibility comes from ideas behind criminal court, in which the lawyer is seen as the accused’s last line of defense against a mighty and over-powering state. An eighteenth century lawyer put it this way: “

[The lawyer] in the discharge of his duty knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.”

In the context of the falsely accused, this is a heroic stance. In the divorce context, however, it can be disastrous. Nearly all divorcing couples, and particularly those with children, must find new, healthy ways to relate to one another after the marriage is dissolved. Yet, divorce attorneys are taught to ignore how much damage they may be doing to the family or the other spouse. Like generals on the battlefield, they must be intent on victory regardless of the enemy’s losses.

The “Collaborative Attorney” Difference

The good news is that attorneys can free themselves from this responsibility to engage in tribal warfare. By entering a collaborative participation agreement, attorneys agree to become collaborative attorneys. The attorneys are enabled to calm the anxiety around separation and divorce and support the couple as they make important life decisions about caring for their children and meeting financial needs. They are no longer required to ratchet up the pain and strong emotions by using litigation tactics and strategies. In the collaborative participation agreement, the attorneys agree that they will never represent either spouse in adversarial court proceedings. The collaborative attorneys are then freed to have concern for the needs of their clients, and for the needs of the family as a whole.

The promise of a new, working relationship after divorce is much more likely to be realized.