It Does Not Have to Be War: When a Gentler Approach Could Be a More Strategic Option

For more than 40 years, I have practised family law, representing high net worth and high-profile clients. I have witnessed firsthand the emotional and financial devastation that contentious divorces can bring. Significant portions of my practice revolve around hardcore litigation, advocating zealously for my clients. However, I have always believed that, in some cases, a softer approach can yield winning outcomes for all parties involved. This approach has always been part of my focus. Indeed, I was doing mediation in 1985 – before it was in vogue.

Divorce pits one party against another, no matter how amicable the parties are. However, it does not always have to be a battle; it can be a process focused on resolution, healing and moving forward. If given the opportunity, I prefer resolving cases without court involvement. Resolution between the parties, not dictated by a judge, gives the parties (and thus my client) more control.

The Role of Advocacy in a Contentious Field

Divorce requires a deft hand and a capable partner as your attorney, whether it plays out as a war or a peace agreement. As I have written in my book Divorce: It’s All About Control. How to Win the Emotional, Psychological, and Legal Wars, there are many types of lawyers for disparate situations. The best resolutions are found when the dynamic is matched – client with counsel and counsel versus opposing counsel.

Family law attorneys have a duty to advocate zealously for their clients, counselling them on navigating the challenges of divorce, which may include avoiding litigation. Zealous advocacy does not mean encouraging unnecessary conflict. Instead, I believe we must advise clients and guide them toward solutions that prioritise their long-term well-being and the best interests of their children. Our counsel might include suggesting the client opts for a collaborative or mediated approach rather than engaging in protracted litigation. Ultimately, we are not just advocates; we are also counsellors.

Choosing a Less Confrontational Path

Divorce is typically a stressful and emotionally trying time. When things become contentious, the difficulties are only compounded. As I like to counsel my clients, divorce does not have to be an all-out battle. It is possible to have an amicable dissolution of a marriage, assuming both parties are willing to embrace a co-operative approach and do the hard work. It is the requirement that both parties must be willing, which often creates a dichotomy. The alternative is having someone in a black robe resolve the matter through their ruling or many rulings.

Of course, not all attorneys are inclined to embrace any form of alternative dispute resolution. Some lawyers are aggressive by nature and believe it is their job to go to war on everything. Being represented by an attorney who prefers a more confrontational, pedal-to-the-metal approach will make it virtually impossible to resolve things amicably, at least until the warrior lawyer decides it is time for resolution outside the court. If the client does not want a confrontational approach, the onus is on them to fire the lawyer or the lawyer to fire the client.

I do not want to suggest that confrontation is always the fault of the attorneys because there are many instances where both spouses initially express an interest in having an amicable divorce process. Then, one or both parties end up becoming intransigent. Clients often do not understand or embrace what being amicable means. Instead, they want things done their way or in a way that favours them. In such cases, the two sides may be acting unreasonably, or they may just see things differently, resulting in battles.

As our California Family Law statute requires, there must be complete transparency – the open sharing of documents and information. Notwithstanding this mandate, fights over obtaining documents and information remain prevalent in the dissolution of marriage, registration of a domestic partnership, paternity and other processes.

Collaborative Divorce (the Structured, Formal Process) Works More Often Than Not

Collaborative divorce, in particular, has gained traction as a viable alternative to traditional litigation. Many couples seek to dissolve their marriages in a way that minimises conflict, preserves co-parenting relationships and protects children from unnecessary trauma.

The International Academy of Collaborative Professionals (IACP) comprehensively researched collaborative practices. Surprisingly, 97% of all reported collaborative cases involved divorce. Of that group, the study found that 86% of all reported collaborative law cases settled with an agreement on all issues and an additional 2% reconciled. The collaborative process terminated in 11% of cases before agreeing on all issues. Of those that terminated, 14% had a partial collaborative agreement.

Collaborative divorce starts with parties and their attorneys agreeing to resolve disputes outside of court. Then, a Collaborative Participation Agreement is signed. This Agreement stipulates that parties must hire new legal counsel if the collaborative process fails, creating a strong financial incentive to negotiate in good faith. It is recommended that clients hire attorneys who have been trained in collaborative divorce, as they have the requisite, proven skills to communicate and co-operate with the other party.

Building a Collaborative Team

The collaborative divorce process involves more than just attorneys. Because divorce is not simply a legal process but also a highly emotional and psychological journey, a collaborative team is needed to support the participants, including family members, entirely.

As such, family law attorneys should encourage their clients to seek support from a team of professionals, including financial advisers and therapists.

According to the IACP survey, more than half of all collaborative divorce cases use one or more financial professionals and/or mental health professionals.

• A neutral financial specialist or forensic accountant is another crucial part of the collaborative team. These professionals help the attorneys streamline the process of resolving financial issues. They can also assist in evaluating assets and structuring settlements that provide long-term stability.
• Mental health professionals can assist clients in working through the emotional aspects of the divorce. Such professionals are especially important when children and custody are involved, as emotions can run very high in these situations. Mental health professionals provide excellent help, consulting on how parenting responsibilities will be shared once everyone lives separately, whether in collaborative divorce, mediation or litigation.

• Custody experts understand how best to advocate for custodial time that is consistent with the children’s psychological needs. Everyone (and this is my bias!) should prioritise the children’s interests.

Collaboration for the Children’s Best Interests

While we are on the topic of the children, I am a staunch advocate of finding ways to co-parent effectively despite the couple’s personal differences. This type of collaboration requires a commitment to three more “Cs” – communication, co-ordination, and co-operation – each essential for a successful co-parenting relationship. Parents must remain engaged in their children’s lives, maintain open and respectful communication, and be flexible in their arrangements to accommodate changing needs.

Parallel parenting can also be an option when co-operation between parents is difficult. This method allows each parent to manage their household independently while minimising conflict. Clear guidelines and expectations help create a structured and stable environment for children.

Collaborative divorce is often much easier for the children because it is less confrontational. Respecting each other throughout this process shows the children that everyone still cares about each other. That makes an enormous difference for those kids who are experiencing their own emotional trauma as a result of the family breakup. Keeping things civil goes a long way toward helping them come to grips with these changes.

These options prescribe a holistic approach that can help families transition more smoothly into their new realities.

The Advantages of Collaborative Divorce for High-Profile and Celebrity Couples

Collaborative divorce may be attractive for high net worth, high-profile, or celebrity couples. The aforementioned IACP study reported that more than 35% of all reported collaborative cases involved estates of more than USD1 million, 17% of those with more than USD2 million.

Of additional benefit, the more amicable ways of dissolving the marriage tend to be more private, which is often a top priority. Keeping the details of divorce negotiations out of the public eye can help preserve reputations, protect financial interests and shield children from unwanted media exposure.

These high-profile individuals typically want to control the messages and influence public opinion – two critical aspects of protecting their brand. However, keeping matters behind closed doors is virtually impossible when a divorce goes to court. Anything filed with the court is public record, and courtrooms are public forums. Similarly, if a paternity matter uses the collaborative divorce process, the participants have better control over what will and will not be reported in the media.

When a collaborative-style divorce gets coverage in the media, it is often portrayed as a more positive process and treated less salaciously by news and social media. Examples of celebrities attempting to control the narrative abound. In 2014, Gwyneth Paltrow and Chris Martin announced their “conscious uncoupling” to describe their amicable split. Their press statements indicated they were committed to mutual respect and a shared goal of co-parenting their two children to preserve a positive family dynamic.

More recently, Hugh Jackman and his wife, Deborra-Lee Furness, announced they were separating. Though they may not be engaging in collaborative divorce, their focus appears to be on having, at minimum, an amicable process. According to the New York Times, the couple released a statement saying, “Our family has been and always will be our highest priority. We undertake this next chapter with gratitude, love, and kindness.”

Another advantage of collaborative divorce for people in the spotlight often involves the financial repercussions. High net worth divorces can be particularly complex, involving significant assets, business valuations and tax implications. In these cases, a strategic approach is essential for settlements to be equitable and sustainable for the future. By focusing on negotiation and transparency, attorneys can help clients avoid costly litigation while protecting their financial interests and controlling more of the narrative.

Mediation is Another Effective Tool for Amicably Resolving Disputes

Mediation can be another tool for resolving disputes in the family law arena. A skilled mediator is engaged to help couples communicate effectively, identify their shared goals, and negotiate mutually acceptable solutions. Mediation is particularly beneficial because, unlike a judge’s ruling, which can be rigid, mediation allows couples to craft agreements tailored to their unique needs.

The mediator is a neutral, unbiased party in this process; they do not take sides or offer legal advice. The mediator can and should provide insights and context into how the family court would view the legal issues and the most likely outcomes if the matter were in family court. A mediator can help the couple find creative solutions for custody, support and financial issues without going to court. Because this process does not involve the courtroom, confidentiality can be maintained. Regular divorce proceedings in family court become a matter of public record. Mediation, like collaborative divorce, protects personal and financial privacy, other than the ultimate judgment (the document setting forth the parties’ agreement, which is a publicly accessible document.) The mediated settlement is ultimately filed with the court as a final divorce judgment.

Just as the collaborative divorce process can be in person or virtual, so can mediation. In today’s world of advanced connectivity, there is a growing trend toward digital communications with everything, including the courts. Virtual divorce mediation sessions are conducted online, which can lower the stress of having the spouses in the same physical space and the fear of running into each other – provided such a fear pervades either or both parties. They are also helpful when couples no longer live in the same area and travel is inconvenient.

Each party to mediation should have a consulting attorney who advises the client about their rights. The attorney can be present during the mediation (or not); the decision should be made in each case.

Mediation does not mean that the diligence work in a case should go undone. Even in mediation, where applicable, there should be forensic accountants, appraisers, custody experts, etc, as if the matter were being litigated in court. Again, in each individual case, the client and their professionals should decide who should be present in each mediation session.

Complexity Does Not Always Lead to Conflict

Some might assume that complex divorce cases inevitably lead to conflict and contentious battles. Of course, they can. But that is not automatically the case. Just because a complicated set of assets and liabilities is involved, potentially resulting in tax ramifications, a lack of liquidity, and other nuances, that does not mean the parties and the attorneys cannot work together to find a mutually acceptable solution. Both sides can collaborate amicably to devise a plan to evaluate and divide the assets.

Indeed, mediation can be used in the collaborative law process. Yet it is also worth noting that using the collaborative law process or pursuing mediation does not make lawyers’ jobs easier. There is no excuse for cutting corners. The parties must still make complete disclosures, and the attorneys must do all their homework. Both approaches create a more communicative process that gives the couple more control rather than leaving the decision up to somebody in a black robe. 

A More Compassionate Approach to Family Law

The legal profession has long been known for its adversarial nature, but family law does not have to be a battlefield. By championing a kinder, gentler approach that prioritises collaboration, mediation and holistic support, attorneys can help clients transition out of marriage with dignity and stability.

It is important to remember that divorce is not just the end of a marriage but the beginning of a new chapter. As attorneys, we have the power to help our clients write that chapter with compassion, clarity and confidence. By promoting solutions that minimise conflict and prioritise long-term well-being, we can reshape how divorce is experienced and redefine what it means to advocate for our clients.

Please note: The content and views expressed here are my own and do not reflect or represent the positions, strategies, views, or opinions of Blank Rome LLP.