The Collaborative Divorce Impasse: What to Do When You and Your Spouse Can't Agree
Many people use collaborative divorce to work out their differences outside of court.
Collaborative divorce is when the parties agree to put their differences aside in order to avoid a lengthy, expensive, and emotionally painful court battle.
They do it because they’d rather conserve their resources for life after the divorce rather than spending them all on years’ worth of fighting. But it can be more challenging than they think when they don’t realize that for collaborative divorce to work, they’ll have to stop attacking and start working together. It’s a big shift.
Imagine that you’re a boxer entering the ring.
When the referee calls the match to begin, he lays down three ground rules:
There will be no punching
No threats of punching.
Except for these other rules, all the old rules apply unless you agree otherwise.
You were not really paying attention to the rules up till now because you were so focused on the fight, but when you heard the rule for no punching, something in your head told you to listen up.
What does that mean, no punching or threat of it?
What are you supposed to do for the next ten rounds if you can't box? You trained hard to beat your opponent by boxing, but now you can't throw a punch?
The bell rings. First round is uneasy. You two are dancing around each other, not sure how to win this fight. Before you know it. The round is over. Not much happened.
Same goes for rounds two, three, and four.
In the fifth round, you find yourself getting frustrated. You feel that you're wasting your time here. To make matters worse, you do not see a way to win this battle if there is no boxing allowed. You complain to your trainer.
Your trainer says not to look at your opponent as a competitor but as a counterpart. Maybe this isn't about one of you winning or losing, maybe it's about you two working together.
It sounds crazy. You've been training for this fight, so you would win it. Now this trainer, who you are paying a lot of money to help you, is telling you to not think about winning this fight but about you and your opponent both winning.
As you think about firing your trainer, an idea pops into your head. You ask your opponent if they would agree to end the match if you both win.
You already know what the response will be. They’ll probably say, “I am ready to go all day. There is nothing you can say that will keep me from winning this match and you know it.” But you try anyway. You’re getting very tired of dancing around this ring. And sometimes, so is your opponent.
Here’s what you should know about making it work:
Collaborative divorce is for people who are interested in a team rather than an individual win.
It's for people who are looking to expand their horizons. It's for those who work best with a team of professionals offering guidance and support.
What kind of team?
You hire an attorney who agrees to work out the situation without going to court.
You have therapists available to give you real-time advice and help if possible.
Then you have an unbiased financial professional who will help you to think clearly about the way finances are handled.
Getting a collaborative team up and running is no easy task. It takes a lot of challenging work, time, money, and energy. That's why sometimes people can't agree on the approach.
But if you do commit to the process, collaborative divorce can be a valuable, workable alternative to going to court.
However, sometimes the parties, even with the help of the professionals, need someone to make a final decision to settle the divorce.
If that is the case, they could have one of the neutral professionals on the team give an opinion.
Or they could outsource this decision to a trained arbitrator.
An arbitrator should have both legal and financial knowledge, training in mediation and arbitration techniques, fluency with family law issues, and a high degree of ethics so that they will be able to remain unbiased.
Such an arbitrator can help you break through an impasse, reach a settlement and get on with your post-divorce life.
If you think that your case may not settle in arbitration, that you need to go to court as the next option because you can’t reach a decision on the issue, think about the divorce of Alex Baldwin and Kim Bassinger.
Their divorce lasted for years. They both hired hard-core litigators to represent them.
Finally, both parties found themselves in the courtroom of a wise judge named Roy L. Paul of Los Angeles County Superior Court.
Judge Paul understood the secret to closing matters: most people just want to feel heard and understood.
When Judge Paul presided over the divorce, he gave each party one hour to tell their side of the story. He then would make a ruling.
It was the same process that an arbitrator could use, and most often, both approaches ultimately achieve positive outcomes — even in the most bitterly contested disputes. But arbitration is much less costly.
A new route to staying out of court
If you are worried your spouse will not agree to a collaborative divorce or will prolong the divorce by abusing the collaborative process, try the mediation-arbitration route, which starts with mediation and provides that if the parties cannot agree, then the process turns into an arbitration.
It makes good sense to consider all these approaches. In my experience, alternative dispute resolution options like collaborative law and mediation-arbitration have reduced divorce wars exponentially.
The reason is simple. People who are open to out-of-court divorce are people who overall want to follow the law and do what is right. They do not want to go back to court because they want peace, and they realize that if they break an order, there will be consequences.
Collaborative divorce works because people who see this clearly will choose it.
Mediation-arbitration is for people who can take longer to understand this idea.
Some may wish to use the court for divorce emergencies and when they have been wronged, but for many, many people, collaboration, mediation, and mediation-arbitration are effective, important, sanity-saving alternatives. They’re well worth exploring.