Collaborative Divorce Booms as Method to Ease the Parting

By Susan McRae
Daily Journal Staff Writer

LOS ANGELES - Family law attorney Fred Glassman can't stop talking about his new practice.

After 35 years as a litigator, he is part of a team of like-minded lawyers, mental health professionals, accountants and child specialists helping couples to end their marriages in a collaborative way.

To ensure commitment to the process, the lawyers sign a pledge not to litigate in court. If either couple backs out, the lawyers quit. Called collaborative divorce, the practice has been gaining momentum nationally and internationally.

In January, California became the third state, behind Texas and North Carolina, to incorporate collaborative law into its state statutes in the family law section. Additionally, a number of counties, including Los Angeles and San Francisco, have had in place for some time local court rules that spell out the protocol in more detail.

"I am excited every day when clients come to me," said Glassman, this year's president of the Los Angeles Collaborative Family Law Association, the largest organization of collaborative law professionals in the nation. "I don't talk about substance. I talk about the process. "I tell them, 'You know, you have options. You don't have to go to court. You can take control of your own destiny and make your own decisions.'" Glassman, a partner at Los Angeles' Mayer & Glassman, recently lent his expertise as a consultant to lawyers in the divorce of Roy and Patricia Disney, who chose the collaborative method to end their 52-year marriage. Roy Disney is the nephew of Walt Disney and one of Walt Disney Co.'s major shareholders.

"What the Disneys did has given us a lot of credibility," Glassman said. "We are mainstream now. We have people doing these kinds of cases who are in the public eye." Developed in 1990, collaborative divorce was the idea of Stuart Webb, a Minnesota-based lawyer and Buddhist seeking a softer path to marriage dissolution.

The way it works is the couple and their lawyers sign a stipulation with the court agreeing to collaborate fully and honestly to meet each other's needs. The four meet in a neutral environment, usually the offi ce of one of the lawyers, to decide who else might be needed, such as a mental health counselor, certifi ed public accountant and, when minor children are involved, a child specialist. The couple understand the lawyers will not represent them in any litigated proceeding in court. San Francisco family law practitioner Pauline Tesler began organizing the collaborative law movement in California in 1993. At the same time, mental health professionals working in the court system in the San Francisco East Bay were working on a similar move. Psychologist Peggy Thompson and social worker Nancy Ross were becoming frustrated that their reports, rather than helping divorcing couples, were causing irreparable harm.

They decided to take their skills outside the court and to train others. But they became discouraged because, when a couple would have a bad day, they would hire lawyers, and all the progress they had made would vanish. Thompson and Ross heard about Tesler's work, and soon the two groups began meeting to see how they could work together in an interdisciplinary fashion. Financial planners and child specialists joined the mix. "Out of that grew an incredible international movement that now has over 3,000 members," said Tesler, author of "Collaborative Law: Achieving Effective Resolution in Divorce without Litigation," and co-author with Thompson of "Collaborative Divorce." "This is the gold standard on how people can get the kind of help they need," Tesler, a partner in Tesler Sandmann & Fishman in Mill Valley, said.

As a measure of its growth, the practice held its second annual statewide conference in May, hosted by the International Academy of Collaborative Professionals and Collaborative Practice California. Two dozen practice groups throughout the state were represented. "I think what we are seeing now is a real maturity of the process in the dedication to teamwork," said family law attorney Leslee J. Newman, a member of the academy's executive board and the director of public education for Collaborative Practice California.

Newman, who co-founded Collaborative Divorce Solutions of Orange County in 2003, said even her small group has grown from a handful of lawyers when it began to 20 lawyers and 20 other collaborative professionals.

Still, collaborative divorce isn't for everyone. One complaint is about the requirement that the attorneys must withdraw if negotiations break down. Opponents say that forcing the lawyers who know the case best to bow out makes no sense. Not only does it add to the couple's time and expense of hiring new lawyers, but it also increases pressure to settle for what may not be in their best interests. But, advocates point out, this collaborative commitment is what makes this process work. Moreover, Tesler said, if a couple does decide to retain new lawyers and go to court, they are far ahead in the process because they can take the discovery part of the case with them, and it is completely usable.

Another criticism involves the ethical question of how much a lawyer can advocate for a client, when signing a contract to collaborate with the opposing party's lawyer. Although several jurisdictions have raised this question, only the Colorado Bar Association has gone so far as to issue an advisory opinion declaring the practice unethical. It does offer a fix, however. Lawyers can practice collaborative law in the state as long as the contract to withdraw is just with their client and not the opposing spouse.

But Tesler said there is little to fear from the opinion, noting that it is nonbinding and, even in Colorado, prevents no lawyer or client from electing collaborative legal representation. Criticism aside, the consensus seems to be that the advantages outweigh the disadvantages. For those willing to give the process a try, lawyers say they achieve an 80 percent to 90 percent success rate.

Los Angeles resident Bart Greenhut decided to use the collaborative concept when he and his wife sought a divorce. A family relative recommended Glassman.

As divorces go, he said, theirs was relatively simple. He and his wife shared joint property and had two businesses to divide. There were no children or huge sums of money. In all, he said, the time and money spent was half what it would have been had they gone to court. But the main benefi t, he said, was the emotional factor. He and his former wife remain on good terms.

"There are some people who want to get even, and it is not for them," said Greenhut, who has remarried. "But when you go into it rationally and honorably, this is defi nitely the way to go. "It still takes time. It still costs money. But, in the end, there are no hard feelings. Neither of us feels taken advantage of by the other. "It is the least painful way to do a painful thing."

Glassman began incorporating collaborative divorce into his practice four years ago. He has settled 30 divorces with the method over the past two years. He teaches a course in the subject at UCLA Extension and lectures widely on the topic. He's also added his own special twist to the process, a play on words he has trademarked as "MEDICOLLAB" That's "MEDI" for mediation and "COLLAB" for collaborative. "Get it?" he asked.

Grabbing a yellow legal pad, Glassman began sketching a pyramid. The mediator is at the top. A husband and wife anchor each side of the base. This is the mediation model, he said. He drew a square. Spaced evenly around it, going clockwise from the top right corner, are the wife, her mental health coach, her attorney, a child specialist, the husband's attorney, his mental health coach, the husband and a fi nancial expert. This, he said, is the collaborative model. Picking up the pen again, he drew a circle in the middle of the collaborative square. Inside it, he printed a large "M" for mediation. This, he said with satisfaction, is the MEDICOLLAB model.

A longtime mediator himself, Glassman said he often sensed a missing link in the collaborative process. During negotiations, a couple might agree on all the main points but get hung up on one or two minor issues. Usually, Glassman said, these impasses are mere stumbling blocks along the way. But if they are not dealt with, they threaten to dismantle the progress and send the couple running to court.

That's where MEDICOLLAB comes in, he said. By taking a short mediation time-out, people usually can resolve these issues and return to the work at hand. "Doesn't that make sense?" he said. "I am taking the best of both worlds."

Here are a few places to fi nd out more about collaborative divorce: