Collaborative divorce

Via Catallarchy, this interesting article in the NYT on a new practice known as collaborative divorce:

In some ways, the method resembles mediation in its problem-solving approach. But rather than a neutral mediator, each party brings a lawyer to the sessions, as advocate and adviser. But the very format changes how lawyers behave. The cornerstone of the process — and its most controversial element — is that the two lawyers sign a pledge to withdraw from the case if either of their clients decides to go to court. This gives the lawyers an economic incentive to leave adversarial habits behind. It also encourages clients to stay at the bargaining table, since bolting means starting over with new counsel.

Furthermore, this approach attempts to avoid the winner-take-all litigation scenario which inherently poses greater risk to both parties. As Jonathan Wilde points out in his post:

There is a clear difference between dispute resolution in public and private domains. Public dispute resolution is nearly always a winner-takes-all game, because coercion is used to back up verdicts. Judges are not working for a profit, and thus, do not have to please both parties in order to attract future business.

In contrast, lawyers specializing in collaborative legal resolution have to build reputations not just for being strong advocates for their clients, but also for expeditious resolutions without the usual emotional nastiness and financial trauma that accompanies state-based divorce proceedings.

The ideal resolution to a divorce dispute should leave both parties with at least some degree of satisfaction. The state legal system is loaded with incentives against this type of bilateral benefit.