September 12, 2014

Imagining a Divorce, Part 2

Categories: Collaborative LawDivorce

In my last post, which was pitched to an audience of non-lawyers who might be considering divorce, I concluded that, were I in a similar situation I would ideally like to proceed from a place of enlightened self- and child-interest. I acknowledged that such an orientation might be hard to cultivate in the stormy atmosphere of conflict that accompanies many divorces; but I also floated the idea that a decision regarding, essentially, who one wants to be in a divorce is something that a person might well consider before the clouds of conflict gather on the horizon. That said, what would it mean to “proceed from a place of enlightened self- and child-interest” in a divorce?

The key element of that enlightenment would be, in my view, acknowledging that I gain nothing by demonizing my ex-spouse-to-be. Demonizing the person who, for better or worse, is my partner in divorce as surely as he or she was my partner in marriage certainly does nothing good for my children; that is well established. But making one’s spouse bad and wrong is pejorative to the individual because, on a purely human level, such unchecked negativity invariably brings out the worst in a person; and because, on a strategic level, it hampers any efforts that I or my representative might make toward settlement. And settlement is good. Settling is cheaper than not settling. Settlement is the product of the parties’, rather than a judge’s, will. Settlement, given the small number of divorce cases that end in trial, is what the market has determined is the better way of concluding a divorce proceeding. So, given that my case will probably end in settlement, is demonizing my negotiating partner the best way to get there? Hardly. A settlement occurs when the parties accept – whether willingly or grudgingly – that the satisfaction of their individual needs must be subordinated to the needs of the system, by which I mean the constellation of new relationships that emerges from a divorce. Demonization, on the other hand, devalues the humanity and needs of the other, and while that may feel good in the short term, in the long term it cannot do anything but make the divorce process longer and more expensive.

Collaborative practice, with its participation agreements and commitment to settlement to the exclusion of litigation, raises the avoidance of demonization to an institutional level and takes as its starting point a belief in the dignity of both parties to a divorce. As such, I believe it represents a couple’s best prospects for a humane divorce, one in which the best interests of the children and the couple are simultaneously engaged.

Put succinctly, the take-away message for an audience of non-lawyers would be that I feel that this orientation of enlightened self- and child-interest is best served by a collaborative divorce because such a process stands the best chance of avoiding the demonization of the other and of a commitment to a settlement that is truly in the best interests of all parties.


Joshua Gitelson comes to the practice of law via a first career in the entertainment industry in Los Angeles, as a film editor and writer for motion pictures and television. The son of a lawyer on the one hand and a clinical psychologist on the other, Josh has gravitated toward family law as an amalgam of these two “family businesses.” His parents’ amicable divorce inspired him to help others through the divorce process with as little rancor and conflict as possible. As a result, Josh has embraced the collaborative divorce model as a technique to complement his work on divorce in the traditional litigation mode. Learn more at

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