What most people do not understand going into a litigated divorce is that the process itself amplifies and intensifies conflict. A litigated divorce intensifies conflict whether the couple ends up in court (only 5% of divorces) or moves through the long and arduous litigation process until they reach a settlement before trial.
If getting a divorce was cut and dry, and there was certainty about what each person would come away with, then the conflict would have little room to flourish. But this is not the case. Since most people are getting divorced for the first time and don't have much experience or knowledge about divorce, except stories from people they know, it is helpful to understand how the path of litigation breeds conflict and how Collaborative Divorce can mitigate it.
Divorce is one of the toughest things you can go through, largely because the problems that caused it—like not being able to talk things out, unmet hopes, and sometimes even betrayal—do not just disappear - they tend to remain and intensify the pain. Divorce is an emotional journey deeply rooted in individual perceptions. Past experiences and present circumstances stir a spectrum of emotions from hurt and fear, to sadness, betrayal, and shame that influence each person’s visions of future possibilities.
When a couple can let calmness, creativity, clarity, and compassion lead the way, there is a significant shift in how they think and act, steering towards a more positive and constructive direction. So, what is it about a litigated divorce that fosters conflict and a Collaborative divorce that supports peace?
Litigating a divorce incites negative emotions and more conflict for several reasons. The loss of control and predictability, the litigation system dynamics themselves, and some people's belief that getting their day in court will be the answer to their pain.
For many people who approach their lives with some sense of empowerment, having someone else, like a judge who doesn't know them, making decisions about the most significant aspects of their life leave them feeling a loss of control. The unpredictability and uncertainty escalate fear and anxiety. What do a loss of control, fear, and anxiety cause people to do? For many, the natural tendency, boosted by our neurological system to ensure "survival", is to fight. Attorneys adopting an aggressive or confrontational approach on "behalf" of their clients initiate or fan the flames of conflict.
In a Collaborative divorce, despite varying degrees of empowerment among spouses, both receive support from a dedicated team of professionals—including an attorney for each spouse, a facilitator, and a financial expert—to help them more clearly identify their goals. The full team of the two spouses and professionals then gets busy thinking of options to meet as many of both spouses' wants and needs as possible to come up with an acceptable agreement.
Focusing on crafting solutions that adequately address both spouses' interests, rather than battling to win at the other's expense, fosters an environment where individuals can be their most composed and inventive selves in problem-solving. In this process, the spouses have control and are guided by attorneys who understand the law. The attorneys cooperate, brainstorm, and bring their legal experience to share how people have found agreement in similar situations. A Collaborative Neutral Facilitator (also known as a Mental Health Neutral) is there to help manage difficult emotions that do come up and provide specialized support to develop a parenting plan if needed, and a Financial Professional is there to offer specific insight for financial options.
Besides the lack of control and certainty in a litigated divorce due to a judge making the decisions, there are legal system dynamics that contribute to the increased conflict between spouses. Adversarial procedures such as formal legal filings, hearings, depositions, and cross-examination, as well as adversarial tactics such as strategic maneuvering, withholding information, and attacking the other party's credibility are standard components of litigation. Not having ever been through a divorce, it's difficult to imagine the incredible number of hours and dollars spent in this system of moves and countermoves, attacks and counterattacks, most of the time without clarity of what is going to happen in the end.
These dynamics promote a win-lose mentality to "win" at the expense of a person they have each once loved. Without positive or transparent communication between spouses, the lack of understanding leaves them unaware of each other's positive intentions. At that point, their minds fill the gap with negativity and fear. It's a trap of "do or be done to" that takes on a life of its own and urges everyone to keep fighting. Collaborative divorce attempts to shift the dynamics by supporting conversations between spouses and an agreement of transparency with the team. With the Collaborative Neutral Facilitator assisting the communication, spouses can openly discuss their concerns. For example, they both want to shield their children from negativity, one of them wants to keep the marital home, or one wants to retire at a certain age. The Neutral Financial Professional collects information from both spouses and shares it during full team meetings, effectively reducing fears of concealment or intentions to "take everything." Reducing fear invariably leads to enhanced cooperation, creativity, and improved outcomes.
While the fear of a judge determining their fate deters some, others are motivated by the prospect of "having my day in court" to present their case. An adversarial process may align with their preference for a more competitive and combative approach to resolving disputes, and they may not be interested in or capable of considering another option. To enter into the Collaborative Divorce process with another requires the vulnerability of listening to the other. It also requires a leap of faith that resolving conflict is possible through meeting both your needs and another's – a paradigm shift from there being a winner and a loser. So, while a collaborative process might be more beneficial, some people cannot consider it.
Those that want to get before a judge may believe that it is an opportunity to right the wrongs they have endured. They want to clarify how their spouse has been unfair, unjust, and caused pain and they want to ensure that their spouse is held accountable for their actions. That vision holds great satisfaction for them. Yet, the vision usually does not hold up to reality. Or, at the very least, the cost of getting what they hoped for is just as great as the original suffering. Never having gone through a divorce, it is easy to understand their vision, but how and why does it fall short?
First, remember that only 5% of divorces reach the point of being seen before a judge. The time, money, and emotional toll usually result in people finding a settlement before that point. If the divorce ends in court, the spouses might find that the judge they are counting on for "justice and fairness" might not fully understand their unique needs and priorities, or be unable to address them because of the law. Judges differ in how much experience they have had with any particular situation, how they interpret the information given to them, and the biases they have. Though a spouse may have spent endless hours documenting their grievances, gathering evidence, and detailing what they would like, judges get a fraction of that time to hear your information and make decisions. Judges may have insight and a sense of what they want to do to be helpful but may be limited by what they can do.
With respect to the time you get to "make your case," there are many reasons that it's much more limited than you might imagine. The activities that take up most of the time include opening statements by both attorneys, witness and expert testimony with extensive questioning from both attorneys, presenting evidence with disputes about whether or not it is allowed, legal arguments with interpretation of laws and legal standards, and closing arguments by both attorneys. Because these activities take up so much time, spouses often get limited chances to speak for themselves. The following analogy might help illustrate the reality of how little opportunity there is to talk in court. Imagine a sheet of paper that represents the total time in court. Fold the paper in half because your spouse and attorney will use the other half. For each of the previously mentioned activities, imagine folding a piece of paper at least six more times. It is nearly impossible to fold it that many times and the tiny surface area left represents the limited time available for you to speak.
Seeing how litigation works shows that it often ramps up conflict by feeding into negative feelings, pushing people further apart through the adversarial legal setup, and keeping alive the false hope of getting a full hearing and clear vindication in court. For those who can heed the warning of how destructive traditional divorce litigation is, Collaborative Divorce offers a process of reducing fear and negativity, the support to communicate effectively, and the opportunities to develop the options of meetings both spouses' needs. For more info regarding Collaborative Divorce worldwide see https://www.collaborativepractice.com.
Renee Natvig is a licensed clinical social worker with a private practice in Orlando, Florida (https://www.reneenatvig.com/). She is a Collaborative Neutral Facilitator as well as an Individual and Relationship therapist. Renee is certified in Emotionally Focused Therapy for Couples & Families (EFT) and is licensed in Florida (SW8807) and Missouri (2022045146).