“Divorce = Growth?” You Ask.“Sometimes It Can,” Says Collaborative Practice:

Palma Joy Strand, Faculty 
 
I was able recently to sit down and spend some time talking with my long-time friend Andrea Hirsch(http://dcacp.goodbarry.com/_webapp_694451/Andrea_Hirsch_-_Attorney).  Last year, Andrea, another lawyer, and several other professionals formed the Collaborative Practice Center (http://www.collaborativepracticecenterdc.com/)in Washington, DC, where they work with divorcing couples.  
I had heard snippets about Andrea’s transition from a standard litigation-focused divorce practice in a law firm to this negotiation-based divorce practice in an interdisciplinary setting, but we had never had the opportunity to have an in-depth conversation about the shift.  
The essential format of a collaborative divorce is that both parties are seeking a settlement and that negotiating is interest-based rather than positional.  This starting point opens the lines of communication and minimizes game-playing.  The emphasis on reaching agreement is enforced by the lawyers who represent the parties agreeing that they will bow out and hand the case over to other lawyers if the case ends up in court.
In Andrea’s collaborative practice, each of the divorcing spouses has his or her own lawyer and most often also their own “coach”- a therapist or other mental health professional who is the primary advisor.  A financial neutral is also available where advisable.  
As the lawyer in the process, Andrea has found collaborative practice significantly different from traditional client representation.  
To begin with, Andrea works with the entire team of professionals.  She is a key member of the team:  It is essential that everyone knows the legal parameters, options, and potential outcomes if settlement fails.  (I especially enjoyed her comment that it can be useful to know if a particular judge is paying stiff alimony to an ex-wife.)  But she doesn’t call the shots.  Each professional is committed to sharing information with the others and working together to problem solve.    
Also, because everyone in collaborative practice has bought into the interest-based model for negotiation, there is no need to circle around opposing parties or lawyers to sniff out their negotiating paradigm.  Collaborative lawyers aren’t distracted by having to determine what game other parties are playing.  Everyone agrees up front that they’re going to play the same game: developing solutions that will work for everyone, not “winning” or “beating” the other spouse.  This means that Andrea’s team actually includes the opposing lawyer!
Finally, what Andrea said about the personal growth that collaborative practice can offer was the best advertisement for this approach I’ve heard yet.  
It was exciting to hear a lawyer who has been practicing divorce law for over 15 years talk about what she herself has learned from collaborative practice about engaging with clients—and people more generally.  
It was energizing to hear how collaborative practice (sometimes) enables divorcing spouses to work at and end up capable of hearing and acknowledging the other side.  Where husband and wife can muster the capacity for change, divorce can actually lead to growth and transformation.
It makes me wonder how things might be different if collaborative was the rule and litigation the exception.

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Palma Strand
Assistant Professor of Law
palmastrand@creighton.edu

Professor Palma Strand has a B.S. in Civil Engineering from Stanford University, a J.D. from Stanford Law School, and an LL.M. from Georgetown University Law Center. Professor Strand clerked for Judge J. Skelly Wright on the U.S. Court of Appeals for the D.C. Circuit and for Justice Byron R. White on the United States Supreme Court. She most recently has been an Adjunct Professor at the Georgetown University Law Center and previously was an Assistant Professor at the University of Maryland. Professor Strand was a Hewlett Fellow in Alternative Dispute Resolution and Legal Problem-Solving at the Georgetown University Law Center from 2002-2004. She was also the co-founder and principal of the Arlington Forum, a civic organizing initiative based in Arlington, Virginia, that worked with community institutions to broaden and deepen civic engagement in the area of schools, land use, youth, and government processes generally.