FindLaw KnowledgeBasePublished: 2011-12-07
Courts in the United States are designed on the premise that “the truth” will be emerge from adversarial parties who zealously serve solely their own interests. With each side presenting their version of the truth and attacking the other side’s, an impartial judge or jury can ascertain truth.
While this model may work with criminal trials or perhaps with some less emotionally charged scenarios, like business transactions, it is lacking when used for divorce.
Especially when the husband and wife have children, they are inextricably linked in a way that can never be undone.
Studies indicate that while children can and do adapt after divorce, the manner in which the parties conduct their divorce will have a lasting impact on the children.
Limits Of The Adversarial Process
The adversarial process colors every aspect that it touches. Adversarial divorce, like the Red Queen’s world in Alice in Wonderland, makes up look like down and down look like up.
In a high conflict divorce, the process emphasizes every bad aspect of each party’s human nature, accelerating the ruin of the relationship and the hemorrhaging of the joint marital estate. It quickly leads to a scorched earth policy of “destroying everything to save it.”
When a divorce or civil union dissolution occurs, it is important to focus on where you want to go, and not dwell on where you have been. The questions need to become, “What do we do now? How do we go about solving our mutual and individual problems and concerns?”
Collaborative law practice attempts to remove the adversarial, war-like elements of the litigation process and replace them with a solution-focused process. Settlements are fitting and effective when they are jointly constructed, not forced or dictated.
Most people bridle when they feel they are being coerced. By truly collaborating with the person who will become your ex, you can remove the elements of coercion and duress.
You May Need Help With That
To maximize cooperation and jointly created solutions, you want the support of professionals who understand the negotiation process and encourage joint problem solving. In collaborative process, the lawyers and other professionals (financial, psychological) are there to work together, rather than at cross-purposes.
In Their Best Interest
Because the collaborative attorneys are both contractually bound to withdraw from the case if litigation results, regardless of who starts the court fight, they work hard to reach jointly acceptable solutions and to maximize the parties’ overall gains. They want you to succeed because they have a stake in that success.
Your collaborative team works together with openness. To arrive at a fair and equitable solution, one that will minimize resentment and bitterness, both sides must share information. Your attorneys, while protective of each party’s interests, also work for the overall goal of fairness. This means the parties must get beyond individual benefits and look to joint gains that also benefit each party.
Game Theory, The Prisoner Dilemma And Divorce
The Prisoner’s Dilemma comes from mathematics and game theory. A version of it describes how two runaway prisoners are captured by the police. They are separated from one another during interrogation. Each may refuse to speak and be convicted of a lesser charge, or each may ‘rat out’ the other suspect, and go free while the other one, remaining silent, now goes to prison.
The data show that if they both cooperate and say nothing, each would see a little jail time, but then both would go free. Or, both may “rat out” (defect) the other and both will wind up serving the maximum time. But if only one defects, then that “rat” gets the least time and the other prisoner serves the most.
Much like the model of adversarial divorce, those who act entirely out of self interest have the highest chance of the best outcome. However, in computer modeling with multiple iterations, a very simple program named “tit for tat” turned out to be the most successful overall. Its strategy was always to cooperate unless the other side defected, and then it paid to defect.
The lesson of collaborative divorce is quite similar. Cooperation generates the best outcomes for both parties, consistently, presuming that neither defects. Collaborative law is structured to make cooperation easier than defecting.
The Collaborative Solution
If you want to make the best of your children’s and your own situations, consider a collaborative divorce. While it comes with its own challenges, and when done properly, collaborative divorce will mitigate the most corrosive and long lasting ill effects of an adversarial divorce. And when used in conjunction with other Alternative Dispute Resolution (ADR) models, such as mediation and arbitration, the promise of collaborative practice is very bright indeed.