For peace is a process—a way of solving problems.”
—John Fitzgerald Kennedy, Peace Speech 1963
We lawyers have heard about collaborative law and its array of protections for managing conflict and developing trust … etcetera. Yet we remain hesitant, even after giving bonus points for its 90 percent success rate. At the end of the day—no sale. We seem to be getting the “what,” but we’re still fuzzy about “how” and “why” it works.
Our hesitancy is understandably legitimate. We are highly trained fierce advocates and protectors of rights. We are opponents in an adversarial process that determines who wins. How can lawyers address the needs of an adverse party without letting down their guard and letting go of their client’s rights? And, why on earth would clients give up protections that maximize their rights for a process addressing the concerns of both parties?
Here’s “why”: the children of divorce. Summed up, conflict is the single worst thing for the children of your divorce clients. As lawyers, we understand the harmful impact of this conflict but resign ourselves to its inevitability. Our clients resist letting go because conflict feels protective—like fighting back. Yet in the emotional arena, conflict isn’t protective at all. Lowering conflict is the first line of defense parents have in protecting their children, and it’s why collaboration works.
Antagonistically divorcing parents are much like cold warriors, competing for control and dominance through aggressive actions and reactions. Until the time of the Cold War, this was the accepted way of managing world conflict, much like litigation has been the accepted process for divorce. However, this dynamic used in world politics and in families yields an unstable “peace,” at best, where further conflict is always assured.
Our cold warriors got a view of their endgame—up close and personal—through the lens of their mutually imminent destruction: the Cuban Missile Crisis. Suddenly, as if by magic, something shifted … possibly a paradigm … probably some instant insight. The realization that solving problems without risking mutual destruction is critical, with a capital C.
Parents experience their own “missile crisis” when they fully “get” the true impact of conflict on their children. Conflict increases fear in already fearful children, lowers the quality of parenting, damages the security of the parent-child bond, and causes long-term emotional insecurity in children. At some point parents also “get” that they must parent together forever and begin sensing a lifetime dance of anger. Peace, please!
Even when they want to, though, how can parents go from conflict to peace without giving in or giving up? Fortunately, the Missile Crisis forced our cold warriors to figure this out. Without relaxing their guard, they initiated acts demonstrating their peaceful intentions, creating enough trust to form agreements. With mutual compliance of those agreements, they became willing to do more, and—bada-bing—the Limited Nuclear Test Ban Treaty was born at the height of the Cold War.
Collaborative divorce agreements are born in much the same way. Parents begin with demonstrations of trustworthiness, like transparency, respectful communication, and respect of the other’s views. Mutually respectful behavior avoids conflict triggers and allows for the development of trust needed to solve problems. Solutions should address mutual concerns, be crafted by those affected, and be informed, reliable, and effective. Even those most self-interested will comply with agreements serving their own interests.
Resolution of the past personal relationship is not required to jointly parent effectively. Our cold warriors never held hands or adopted the other’s political system. The new parenting relationship is based on an agreement with clear rights and responsibilities. Parties communicate according to business etiquette. Compliance and accountability are expected. Most importantly, there exists a mutual and genuine commitment to a peaceful problem-solving process.
After all, peace is not the absence of conflict. Peace is a problem-solving process. Collaborative divorce is that process for families. Like due process, it assures that both parties have full access to and protections of the process and that their concerns are important, will be fully heard, and will be considered in developing mutually beneficial solutions. These assurances further disarm the impulse to fight and encourage collaboration.
Bottom line: There is no grand arbiter of problem-solving, in world politics or in families. Family courts and mediators are necessarily limited in their ability to craft durable and effective solutions in divorce or joint parenting. Conflict escalates. Expenses mount. The futility and burden of court-sanctioned resolution tips the scale toward a private, more predictable, and business-like alternative. One that navigates parents through conflict to a place where they can build their own solutions that flex as their children grow. A safe place where everyone can begin to heal.
Katie Berry is a recently divorced mother and collaborative divorce lawyer. She is a 1988 cum laude graduate of Texas Tech Law School and a Haynes and Boone alum. She can be reached at katieberrylaw.com and firstname.lastname@example.org.