Years ago, Charlottesville family law attorneys Susan White and Annie Lee Jacobs found themselves on opposite ends of a divorce case. Their clients were very different people—she was an artist, he was a physician—but the ex-couple worked out an agreement across a conference room table instead of in court, and came away feeling like the settlement had been fair to both of them. The process of separating their lives had been like “hospice for a dying marriage,” the doctor told Jacobs.
The two lawyers and several of their Charlottesville colleagues said they want more people to see divorce that way—not as an inevitably bitter court battle, but as a negotiated truce. At a time when, they said, about half of American marriages end in divorce, they’re practitioners of a process known as collaborative law, a team approach that requires a major philosophical shift for everyone involved.
“People probably haven’t spent a lot of time thinking, ‘If I’m going to get a divorce, how am I going to do it?’” said Tom DeMaio, a psychologist who frequently works with local attorneys and their clients on the collaborative process. “It’s not a common thing we talk about: ‘By the way, we’re old. Here’s how you get divorced.’”
A few decades after it was created, collaborative law is a form of alternative dispute resolution that’s well-tested but still not widely known outside of legal circles. The lawyers and clients sign a contract agreeing to put everything on the table and work toward a fair settlement with no strategizing, no aggressive posturing, and no secretly hatching a plan to screw the other side. Often a neutral third party—a psychologist like DeMaio acting as a “coach,” a financial adviser, or both—joins the team. And the key: The lawyers commit to quitting the case if the couple can’t stay out of court.
When Susan White joined the movement in the ’90s, she had already been practicing family law for 30 years. The idea of an approach to divorce that looked forward instead of back appealed, she said. She, too, was worn down by cases where attorneys and clients fought every battle in court.
In litigation, “basically, we’re hired guns,” she said, when what she really wanted was to help people get through a difficult period with as few scars as possible.
Changing the very nature of the divorce process requires a lot of buy-in, or you won’t have anybody to join you at the table. Fellow family law attorney David Toscano was another early adopter, and others have followed suit, creating a core group of about half a dozen trained collaborative divorce lawyers in the Charlottesville area.
But White said that despite an initial surge in interest in the alternative process, enthusiasm has lagged. She and her colleagues want to change that—not just for the sake of business, but because they feel it’s good for their clients and for the community.
For one thing, it’s often cheaper. Not always, White acknowledged—while she’s had couples work out an agreement after one meeting, she’s also had them last for 15 meetings, and the attorneys still bill by the hour.
But settlements forged through the process tend to have staying power. White said she’s seen about 90 percent of collaborative cases succeed—that is, the parties stayed out of court and walked away feeling their compromise was fair. She’s had litigated cases drag out for more than a decade and cost hundreds of thousands of dollars.
It’s also less traumatic for the adults and the children involved, the attorneys said.
“Often people going through a litigated divorce are embarrassed,” said Charlottesville attorney Kim Mattingly, who often works with Jacobs, White, and other local lawyers on collaborative cases. The traditional process can be humiliating, painful, and public. “But people going through the collaborative process can be proud of it.”
There’s no question that teaming up with opposing counsel requires a big mental shift, said DeMaio. An attorney who’s learned to be fierce in court and fight every battle usually needs a lot of training before successfully negotiating collaboration, he said. Some never get the hang of it.
The bigger challenge, though, is changing public opinion, said DeMaio. It’s often TV dramas and friends’ stories that inform people about the process, and they assume the worst.
“People still say to me in my practice, ‘I guess her attorney’s going to be nasty.’ That’s what their anticipation is—an adversarial process.”
It’s understandable that people want to know their lawyer’s looking out for them, he said, but that doesn’t have to mean a battle.
“There’s another way to say, ‘I will protect you,’” DeMaio said. “It’s ‘I will watch out to make sure you get a fair settlement. I will not help you get one that’s unbalanced.’ It’s a different approach to dispute resolution.”
For one of White’s clients, who preferred not to be named, the collaborative process also felt less arbitrary, because there was no judge presiding as an unknown variable—just her, her now ex-husband, and their lawyers.
“It’s a way to have a little bit more control over the situation,” she said.
Which isn’t to say everyone ended up perfectly content. She was 60 when she decided to end her marriage to her husband of 30 years. They had a lot to divide up, and two children to shield from the pain of the split. It wasn’t always smooth, and she even considered going to court. But she’s glad they stuck it out. She’s seen friends’ divorces go much worse, dragging on for years, costing fortunes, and leaving everyone miserable.
“It’s a very demeaning, demoralizing, and disrespectful process,” she said. Ultimately, she felt like she avoided the worst. “I wasn’t always happy with my husband’s attorney, but I really didn’t feel like he was my enemy,” she said.
And that gets to the heart of the matter, said DeMaio. Forging allegiances in order to split up may seem counterintuitive, but it’s worth it in the long run. “It’s what I tell my clients,” he said. “‘Get to attorneys who will protect you from your conflict.’”
