Litigation vs. collaboration: Collaborative divorce comes (mid)west
BISMARCK, N.D. – Collaborative divorce, hailed as a more civil and respectful approach to marriage dissolution, is gaining a foothold in North Dakota, particularly in Fargo and Grand Forks.
The process usually involves the divorcing couple and their respective attorneys, along with mental health professionals and financial specialists. All agree to a problem-solving methodology that looks for peaceful compromises and resolutions.
Collaborative divorce originated in 1990 with Minneapolis family law attorney Stu Webb, who, frustrated by the adversarial nature of traditional divorce, developed the family-friendly approach. Collaborative divorce now is popular in Canada, Europe, Australia and major U.S. cities.
There’s no required standard for training in collaborative practice, but the International Academy of Collaborative Professionals has set standards that call on collaborative professionals to complete workshops, mediation training and continuing education.
The first collaborative law training session in North Dakota was held in 2011 with three Fargo practitioners in attendance. The following year, 17 lawyers, mental health providers and financial professionals were trained.
In September, the UND School of Law hosted a collaborative practice training seminar in Grand Forks for about 30 participants. About 100 North Dakota professionals, mostly attorneys, now have been trained in collaborative law.
The major difference between collaborative and traditional divorce is a pledge from all parties to not go to court.
“The U.S. judicial system is adversarial,” said Mike Gjesdahl, a Fargo family law attorney and president of the North Dakota Collaborative Divorce Group.
“It’s ironic that we attempt to resolve conflict by putting people in a conflict-based system.
“In a traditional divorce, the lawyer is the gladiator, the champion, the advocate for the client,” Gjesdahl continued. “In collaborative law, we put Mongo back in the cave and let our kinder instincts prevail.”
Gjesdahl, who heads Gjesdahl Law, a seven-attorney family law firm in Fargo, paints a visual picture to illustrate collaborative divorce. He explains that in traditional divorce, one person and his or her lawyer are on one side of the table, while the spouse and the spouse’s lawyer are on the other side.
In the middle of the table is the word, “versus.”
In collaborative divorce, in contrast, the couple and their attorneys all sit on the same side of the table. On the other side are the couple’s problems and issues.
The commitment to work through those issues is the reason mental health professionals are the most important members of the team, said Tonda Mattie, a collaborative law attorney in Edina, Minn.
“If they don’t have the benefit of a mental health professional, their divorce will look just like their marriage: something’s not working, and that’s why they’re ending the marriage.”
In the collaborative process, the mental health professional is often called the “divorce coach.”
Mattie shares a suite of offices with about two dozen other professionals as part of the Collaborative Alliance Office, a one-stop-shop for collaborative divorce. The building houses attorneys, mental health professionals and financial specialists trained in mediation and collaboration.
Mattie joined the Collaborative Law Institute of Minnesota in 1992; it had been formed just two years earlier by Stu Webb and others. She has handled several hundred collaborative divorce cases.
Another characteristic of collaborative divorce is a child-centered focus. Minnesota psychologist Deb Clemmensen works full-time with parents and children as a collaborative neutral. A current board member of CLIM, she also works out of the Collaborative Alliance Office and is one of the most senior collaborative law child specialists in the country.
Both Mattie and Clemmensen have led sessions in North Dakota as part of the CLIM training team.
In her initial interview with parents, Clemmensen asks, “What’s the story you want your children to tell about this divorce?” She’ll usually meet with the children separately, she says, but never before meeting with the parents first.
“I help parents compose a ‘We Statement,’ even though they’re in crisis, that would give their children a feeling of safety and hope, as opposed to confusion and conflict,” she said.
Mattie agreed. “We’re neutral coaches,” she said. “We’re there to promote communication and help the parties transition from a husband-wife relationship to a co-parenting relationship.”
Research completed in 2015 by the IACP showed a high satisfaction rate – 77 percent of 1,036 divorced individuals who were interviewed – with the collaborative process.
Also, 78 percent of those who chose collaborative divorce said they did so because they felt it would be a more respectful process.
“When there’s respect, you’re far more likely to think clearly and communicate about the really important decisions you have to make that will affect the rest of your life,” said Clemmensen.
But the collaborative process may be inappropriate for a couple when there is active addiction, an untreated major mental illness or “a deep wound due to a betrayal” involved, she said.
If either party decides to go to court, the collaborative professionals – including the attorneys – terminate their involvement. “This is an incentive to remain in the process,” Gjesdahl pointed out.
“You don’t want to go back to go and start over after you’ve invested considerable time and money.”
Gjesdahl is working to grow collaborative law across North Dakota. A major challenge is the state’s rural nature, as the collaborative process requires professionals who are likely to be found only in the larger cities.
“We’re introducing judges to it now, and we’re speaking to pastors and mental health providers,” he said. “We’re saying, ‘Here’s a peace initiative, a method of helping people get through a dark time in a respectful way.’”
For more information about collaborative law, visit gjesdahllaw.com, collaborativedivorce.net, collaborativelaw.org or collabortativepractice.com.
Licensed addiction counselor and certified grief counselor