Litigation or Collaborative Divorce? Know What You’re Signing Up For!

Submitted by renee@reneenatvig.com on April 10, 2024 - 10:41am

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).

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Thoughts on the flight home from the Basel conference on Collaborative Practice

By William Hogg LL.M • June 10, 2026

Reflection from William Hogg LL.M: I am writing this on the flight back to London, which probably explains the slightly scattered nature of what follows. I have just spent three days in Basel and I am still letting it all sink in. I had been looking forward to this conference for a long time. It did not disappoint. Basel was a wonderful setting, and the programme gave us a lot to think about. There were moments where the quality of discussion really stood out, not because it felt overly polished, but because people were speaking from experience. From 4th to 6th June, I joined professionals from across Europe for a conference on ethical challenges in Collaborative Law and Practice, hosted by Collaborative Law & Practice Switzerland together with the European Network for Collaborative Practice . As a board member of the ENCP, and of the Family Mediators Association here in the UK, this is a community I have been part of and championed for years. Being in Basel with so many of its members in person was a genuine pleasure. Lawyers, mediators, financial advisers and coaches. People who spend their working lives with families at the worst moments those families will ever face. There was something unusual about being in a room like that. Everyone seemed to be there for the same reason, and it was not really a commercial one. They wanted to know how to do this work better. How to cause less damage. How to help people get through separation with a bit more of their dignity intact. That is what I have come away thinking about most. We tend to talk about family law in technical language. Disclosure, negotiation, orders, hearings, outcomes. All of it matters and none of it is going away. But underneath every one of those words is a person who is frightened, grieving, or watching a future they had planned for simply dissolve. Collaborative Practice starts from that fact rather than working around it. It asks us to care about how someone arrives at the answer, not only what the answer is. For anyone who has not come across it, Collaborative Law is a structured way of resolving family matters without going to court. The clients and their advisers agree to work things out around a table. It relies on honesty, good preparation, and a genuine willingness to solve the problem instead of trying to win. That idea is not new. What felt new in Basel was how hard people are now pushing on the detail. How do you build a proper team around a client. How do you spot a power imbalance before it does harm rather than after. How do you let a child's voice into the process without putting a child in the middle of it. How do you adapt when the person across the table is anxious, neurodiverse, or so overwhelmed they can barely take in what is being said. These are not seminar questions. They are the things that actually decide whether a case goes well or badly. The ethics theme ran through all of it, and rightly so. In Collaborative work ethics are not a footnote. They are the foundation. If one person does not feel safe enough to speak honestly, the process has already failed, however civilised it looks from the outside. If the advisers lose sight of who they are really there to serve, the trust that holds everything together starts to go. A room can be perfectly polite and still be deeply unfair. The same point kept coming back in different sessions. Goodwill on its own is not enough. You need skill, you need structure, and you need to keep questioning yourself. You have to be confident enough to give your client proper advice, and disciplined enough not to throw petrol on the conflict while you do it. You have to ask your client to be open, while accepting that openness is only possible if you have built the conditions for it. That is the part I find genuinely exciting. The principles are old. The way the ENCP and its members are developing them across Europe feels very much alive. There is a real appetite to keep improving, to borrow from how other jurisdictions do things, and to keep asking the uncomfortable question of whether the process is actually helping the families who use it. I came away energised and proud to be part of this community. A special mention to some of the standout contributions over the three days. Shireen B. Meistrich from the US, was excellent, as were lawyers Marc Sheridan and Jacinta Gallant , and Alicia Farran of Our FamilyWizard in the UK. Federica Marabini , Michela Tonini and Sofia Tremolada gave a superb group presentation as a Collaborative team from Italy, and Swiss speakers Titus Thoma and Stefanie Santschi rounded things off beautifully. Thank you all. You are a large part of what made the three days so worthwhile. One thing I keep returning to is that Collaborative work refuses the assumption that separation has to be a fight. Plenty of cases do need a courtroom. Some clients need the protection that only a court can give, and I would never pretend otherwise. Collaborative Practice is not for everyone, and anyone who sells it as a cure for everything is overselling it. But for the right people it can change everything. It gives them somewhere to be supported without being backed into a corner. It lets the hard conversations happen with someone in the room to guide them. It nudges everyone to look past the argument in front of them and towards the life the family still has to live. That matters most when there are children. Two people might stop being a couple and still have to spend the next twenty years being parents together. How the legal process is handled can make that future a little easier or a good deal harder. So, I am grateful to the organisers for three genuinely valuable days, and reassured that there is a serious, thoughtful community of people across Europe who care deeply about getting this right. I am not bringing home one tidy lesson. It is more a reminder. Family law can keep evolving. An established process can still feel fresh when people apply it with imagination and a bit of care. And when professionals work together properly, with integrity and real concern for the person in the middle of it, the client is the one who benefits. That is how we try to think about family law at Laurus . The question is never simply what the legal route is. It is what the right route is for this client, this family and this particular moment in their life. Basel was a good reminder of why that question is the one that matters.