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Sometimes parties will seek assurance from each other that their discussions of all the issues will be fair and above board and aimed at an effective resolution. They want to be able to promise one another that they will make all the many decisions in an atmosphere of cooperation, without intimidation or coercion. They don’t want to worry about or even hear threats of trial. Where perhaps they do not foresee this happening without the careful assistance of counsel who themselves are committed to the same rules of engagement, they will want a collaborative divorce process. “Collaborative divorce” involves the parties and specially trained counsel doing most of the work of divorce in joint four-way sessions. The parties promise to provide all necessary information and to communicate fairly. Counsel for the parties promise to assist with this communication, to in fact model good communication. There is a written commitment to find an effective solution for both parties AND that if the effort fails to achieve a full and satisfactory resolution, neither attorney will take the case on into litigation for their client. Two new lawyers would be involved to take the case to trial. Obviously, this seems a pretty scary concept and that is why it works to quell the urge that lawyers (and parties, too) sometimes have to resort to threats of trial. That is coercion and coercion is forbidden as a collaborative tactic. However, it is important for clients to remember that very few cases actually require a trial. 98% of cases don't go to trial. This "no court divorce" option makes the attorneys as responsible for handling themselves in a way that facilitates communication and option development instead of using our talents and knowledge of the law to intimidate the other side into settlement or to get our way from the court. Again, others can be added to this process, as in mediation, to provide valuation, parental planning, financial advice, etc. All personnel involved in a collaborative divorce should be trained in the special techniques required. Basically, we all have a lot of unlearning to do so that we avoid the power positioning and use interest based skills that enhance communication effectiveness.
Modified Collaboration contains the same promise of "no court", and operates under the same rules as collaborative divorce, but involves retaining a mediator and other mutual consultants and proceeds with the mediator as the team leader. The lawyers may be involved in each session or might perhaps act more as collaborative coaches outside of the actual mediation sessions.
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