Surrender or sue? When a marriage ends, decisions about financial assets and child custody are ultimately those of the divorcing couple. Even with legal assistance, the process often results in quarrels and bad feelings. Until recently, there were few alternatives to a combative, emotionally debilitating divorce short of consenting to the demands made by the opposing counsel. An innovative legal process called "collaborative law" now enables divorcing spouses to settle differences without the costs and bitterness of lawsuits.

Under the collaborative law approach, each spouse chooses a lawyer just as he or she would in the normal divorce process. What makes this process unique is that the four individuals involved (the two spouses and two attorneys) sign a binding agreement that directs the attorneys to negotiate a settlement without the option of going to court. The lawyers do the one-to-one negotiation, thus saving the divorcing couple from uncomfortable and tense confrontations. Because the attorneys are paid to represent their clients, both work on their clients' behalves to secure a settlement that they will consider fair and acceptable.

Replacing the "gladiatorial" model

Pauline Tesler, J.D., a family law attorney and co-director of the International Academy of Collaborative Professionals (IACP), contrasts collaborative law with what she calls the "gladiatorial model" of conventional divorce law.

"In conventional law," Tesler says, "the lawyers can't lose. If they settle the case, fine. If they litigate, that's even better for them - at least financially. In collaborative law, the absolutely essential ingredient is that there has to be a binding disqualification of the lawyers from ever going to court for their clients. It distributes the risk of failure squarely in the lap of the lawyers as well as the clients."

Tesler has represented clients in approximately seventy collaborative negotiations and now handles divorce cases only for couples willing to use this approach. So far, only three of these negotiations have broken down entirely.

Better than mediation

"It's an improvement over both full-blown litigation and mediated resolution," says James C. Turner, executive director of HALT, a consumer advocacy organization for clients seeking legal counsel. "Collaborative lawsuits incorporate the full value of expertise by specially trained professionals, who also have training in how to bridge differences rather than fight for the last drop of blood."

Experts, such as appraisers or tax accountants, are hired jointly, eliminating both a duplicate expense and costly maneuvers to bolster or destroy their credentials in court. "A divorce where someone has significant assets can range anywhere from $60,000 to $100,000 in legal and court fees," Turner says "A collaborative law approach can slash costs to a mere fraction of these fees."

Far more important than the money savings, couples preserve their self-respect and reduce the emotional damage to their children. Preserving human and family values "Collaborative law pays attention to the ongoing health of the family after divorce," Tesler says. "The gladiatorial model defines the professional intervention - beginning the moment someone walks into the lawyer's office and ending when the judge signs a piece of paper. This paradigm has no relationship whatsoever to the actual experience of people who are divorcing."

"There is little in the legal system," Turner adds, "that is more traumatic than going through a contested divorce, especially if there are kids involved. Any approach that promises to abate confrontation and the 'at-each-others'-throats' aspect is very important."

Medical and psychological data confirm what common sense suggests: the more bitter the parents' fight, the more children suffer. A recent medical journal article clarifies: "reducing the level of conflict between the two parents is most strongly associated with the eventual adjustment of the children of all families, including the children of divorce."

Available everywhere

Only a small percentage of contested divorces are settled collaboratively today, but the approach is feasible in any state. Lawyers trained in this approach now practice in most urban areas. The training is important, Tesler says, because gladiatorial habits are hard to break. Many talented and conscientious lawyers now find collaborative law as a way to participate in a problem-solving process rather than assuming roles that make them part of the problem.