Today I am continuing in my series on the alternatives in Alternative DIspute Resolution (ADR). Thus far in the series, I’ve primarily focused on processes that use a neutral facilitator, often a mediator. Today I’m going to switch gears and discuss a process that does not use a facilitator, rather professionals who have additional training in ADR that qualifies them to concurrently use their professional training and specialized ADR training to have a full complement of processes to resolve the legal conflict. Collaborative practices is one of those processes.

Definition and Components:

collaborative divorce saves money

 Collaborative Practice is a voluntary dispute resolution process when parties settle without litigation.  The process requires:  that the parties sign a collaborative participation agreement, disclose all relevant information, agree to use good faith negotiations, and be represented by a lawyer with sufficient training in the process who also will not represent the party in the litigation.  The process may involve additional experts, including mental health and financial professionals.

Unique qualities:

Lawyers participate and provide legal advice to their clients in the presence of all parties.  The parties agree to provide all relevant information and to reach an agreement through the process or retain new attorneys. 

Steps or stages:

The process begins when parties sign a participation agreement when meeting with the team initially.  The lawyers and clients, and other members of the team convene a series of four-way meetings, and the team works to resolve the legal issues to the satisfaction of all parties.  When an agreement is reached, the attorneys may continue representing the parties when court approval of an agreement is required.  When the parties cannot reach an agreement, the team terminates the process and the parties retain new counsel.


·      Parties have control and create their outcome.

·      A decision is not binding until the parties reach an agreement and it is adopted by the court, in some areas.

·       Decisions are fully informed.

·      Generally less expensive and less time consuming than litigation.

·      Some participants report reduced stress and anxiety.

·      The team approach to address the legal, financial, emotional, and parenting aspects allow for more significant resources in resolving difficult problems.

·      Agreements tend to be created by the family, and they are often more sustainable.

·      Confidential.


·      Parties who cannot reach an agreement must obtain new counsel.

·      When the parties need additional resources through a financial neutral or mental health professional and do not have those resources, it is difficult to get a superior resolution.

reaching an agreement in collaborative divorce

·      Insufficiently trained professionals are available to provide adequate choices for parties to select this method.

 Best for: 

Wills and estates, health care disputes, employment, business, and family disputes.  Has been used successfully in civil litigation.

For more information:

Stuart Webb and Ronald Ousky, The Collaborative Way to Divorce, (2006).

Pauline H. Tesler, Collaborative Law (3rd Ed. 2016).

 Ethical Standards for Collaborative Practices

Sample Form-Sample Participation Agreement

To locate professionals in your area:


Mediation requires a different physical space than a law office.  Even collaborative law needs to be practiced in an environment that is more about talking and less about creating paper.  Our office is in the middle of a transformation from an office that was something like a machine, creating calendars, pleadings and correspondence. Our new Charles Town office is going to be less machine-like and will allow for the type of patient communication that both mediation and collaborative law require.  

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The office space demands for a practice built on collaboration and mediation differs from litigation.  We are in the midst of a remodel and are redesigning our outdated space to create a space designed not to process papers and stage mini-trials, but to address conflict and find collaborative resolutions.

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Where to Start?

2013 01 17 runners at the line starting getting started.jpg

This morning, I read that the most divorces are filed in January and September.    When I first began practicing law, I was taught that the divorce process began with filing a complaint.  The client came in, retained us, and we filed the complaint or petition.  We then served it on the opposing person, the spouse, via the sheriff and awaited the response to the complaint.  After practicing for almost thirty years and earning my masters degree in conflict transformation, I have abandoned this process.  My clients who wish to be divorced get divorced, but the processes I recommend are much less expensive and much less likely to cause further family disharmony and strife than the process I followed in 1987.

How does the new process work?  We work out the resolution first, and then file the paperwork with the court.   We still exchange all financial information or other relevant information, just as is required by the law in most states.  We still address the financial needs of the parties and then negotiate to meet those needs.  We still wind up with a final decree that will provide for issues such as the divorce, custody, property division or support.

Additionally, we have the opportunity to work at the pace that the parties desire, rather than the court schedule.  We have a far greater range of options than those available by statute.  We have a streamlined process wherein the parties will not pay for lawyers to attend temporary or status hearings, respond to correspondence or discovery requests or prepare for contested hearings.  The bottom line:  the parties direct the course of their divorce and save time and money in the process.

Exactly what happens?  Using mediation or collaborative law, the parties will exchange information and then get together in one or in a series of meetings.  During those meetings, the parties, and their attorneys (if the parties desire) will work out the details of their agreement.  The agreements will be put into writing and then filed along side the paperwork to start the divorce.  The court will set one hearing.  The parties will attend the hearing, if required by statute, and in most circumstances, the court will adopt the parties agreement and enter a final order.

Some people think that this type of process is impossible.  If you think you are one of those people, you may think that there is no chance for an agreement, not in your case.  However, chances are strong that your divorce or custody case will be resolved through a settlement.  Nationwide 95% of all divorce cases are resolved through an agreement, not through a court ruling  The question becomes when do you want to reach an agreement and how?  Do you want to spend thousands of dollars on attorney fees and reach an agreement on the courthouse steps the day of your trial?  Would you prefer to work out an agreement in a less stressful atmosphere on your own schedule?  With collaborative divorce and mediation, that is possible.

Why not go ahead and file the divorce and then negotiate the agreement?  There are many reasons why “just filing” may not be a good idea.  The moment parties file the divorce petition; they are put on the court’s schedule.  The court has strict timeframes that it will want to adhere to.  After filing, it is more difficult to negotiate.  If both parties hire attorneys who are not working collaboratively, just making an offer requires one party to convey the offer to their attorney, who conveys it to the other attorney, who coveys it to your spouse.  The process is then reversed to respond.  This is a very expensive version of the “telephone” game that we played in elementary school.   In mediation and collaborative meetings, everyone is in the room together.  Not only does that save time, and provide for less opportunity for erroneous communication, but also it often saves a significant amount in attorney fees.  

Perhaps the biggest problem, with “just filing” is it sets the stage for an adversarial process.  The final hearing date will loom ahead.  The entire process of negotiation is riddled with worry and dread as the parties move cautiously through the formal court processes.

Of course, after filing, you continue to have the option of mediation, and should consider it.  However, engaging in mediation BEFORE filing the suit provides a superior opportunity for a good resolution in most circumstances.  Both mediation and collaborative divorce provide many opportunities for a good resolution.  Delaying filing in those cases, may actually expedite the final decision.



When you are considering divorce, be sure to consider both mediation and collaborative law as options.  Both of these options are usually healthier for your family and tend to be less costly than litigation.  With offices in Martinsburg, Charles Town and Washington DC, Brenda Waugh can provide you with mediation or legal services and help you to weigh the costs and benefits of the various processes available.

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