Four Paradigms of Collaborative Divorce: A Client-Centered Alternative to Litigation

Collaborative Divorce and Mediation are alternatives to help divorcing couples reach an optimal divorce settlement. As a Collaborative Divorce and family law mediation professional practicing in New Jersey and New York, and after years of teaching and practicing collaborative divorce, I have formulated four aspects of collaborative practice that clarify how this approach represents a unique and effective way to help couples reach better outcomes in their divorce.    

How We View Divorce

The traditional legal framework views divorce literally as the “dissolution” of a relationship, as the end and the termination of the family. Collaborative divorce professionals understand that even if a couple are going through a divorce, there are still relationships that need to be preserved. Where there are children involved, this message is crucial in helping children (not to mention parents) survive and ultimately thrive beyond the divorce, as being part of a family plays an essential element in one’s sense of self, value, and identity.

Collaborative divorce professionals understand that divorce is not the end of the relationship but a restructuring and reorganization of the family. The family remains. With this framework, Collaborative divorce professionals are not just focused on getting a deal but are mindful of the relationships, both during the divorce process as well as for the many years after this challenging transition in the family.

How We Define Success

Standard law school education and traditional legal training define success (or “winning” a case) based on getting the “most” for one’s client and, thus, the “least” for the other client. This is based on a zero-sum game, where winning for one side is the hallmark of success. But how does that apply to a family, to two parents who will have to co-parent their children and are committed to their children’s welfare and best interests? Is one parent the enemy? Does one parent have to destroy the other?

Collaborative, by its very definition, does not seek outcomes in this “either/or” framework but acknowledges that both sides have legitimate needs and concerns. Collaborative negotiations are about problem-solving and should not be driven by fear, positioning, or strategic posturing. The goal of Collaborative Divorce is how can we reach an outcome that addresses the needs and concerns of all family members – as much as possible. Resources are almost always limited. Time with our kids is just never enough. But making all attempts to jointly address all family members’ needs and concerns is the surest path to reaching that goal – as much as possible.

How We View The Role Of The Client

In Collaborative Practice, clients are not bystanders watching the professionals work out the future and fate of their family based on theoretical legal principles or arcane court procedures. Rather, Collaborative clients are intimately involved every step of the way and in every aspect of the settlement process. Unlike a traditional litigation or court-based divorce, Collaborative Divorce is a client-centered divorce process, not a lawyer-centered process, and certainly not a court-centered process.

Divorcing spouses are not seen as enemies pitted against each other in a lawsuit. Collaborative Divorce clients are the masters of their destiny, determining what their new family structure will look like. The clients are the protagonists. They are the experts for their own families, and decisions are made based on their values and priorities—not the lawyers or the law. Collaborative Divorce professionals merely serve as guides, supporting client autonomy and self-determination.

How Can We Help

Years of experience have brought humility to the divorce professional. There is a limit to what one person can do to help a family through the difficult transition of a divorce. We realize that divorce is not just a legal event but a multi-dimensional transition. It is obviously an emotional transition; it is a parenting transition; it is a financial transition. Instead of having one professional focus on all these dimensions, we have learned that the best way to help a family is through an interdisciplinary team.

Lawyers help with the law. Mental health professionals serve not as therapists but as divorce coaches (a.k.a. facilitators), helping to clear the emotional obstacles that all too often get in the way of a successful negotiation. Mental health professionals serve as child specialists and can also be available to bring the children’s voices into the room so that truly the best interests of the children can be achieved. Financial professionals can focus on efficiently gathering and analyzing financial data so that the clients and their lawyers can more clearly understand the facts, figures, and financial options (with tax optimization, of course). Instead of just one professional helping a divorcing couple get a deal, the synergy of these various professionals, working together as a team based on the needs of the family, enables families to reach optimal outcomes. And, in the end, that is what Collaborative Divorce is all about.

In sum, while 99% of divorces are settled without a court-imposed decision, Collaborative Divorce is unique in that it

• helps the family (remain a family)
• reach successful outcomes for all members of the family
• makes decisions based on what is important to each client (and their children)
• enrolls the assistance of different professionals who offer different specialized expertise in the multi-dimensional transition of divorce. 

Through clarifying the uniqueness of collaborative divorce, couples can make their own assessment and check in with their values and goals for themselves and their family to determine whether it is the right process for them.

At Berner Law & Mediation Group, we help families navigate collaborative divorce and divorce mediation in New Jersey and New York with a focus on respect, clarity, and long-term family well-being. If you’re beginning to think about your next steps, we’re here to answer your questions and help you explore whether the collaborative process is right for you.