Do I Litigate, Mediate or Collaborate in My Divorce?
When a new client comes into the office, a part of our initial discussion is which one of three forks in the road should the client take in this case. Is this a case that must be litigated because there are issues that only a Judge can decide? Are the parties able to retain the services of a third-party mediator to work through their divorce? What about the new kid on the block, this collaborative divorce idea?
Generally speaking, litigation is the default solution for the court and for most attorneys. A client walks into the office and says that his or her spouse has been having an affair or has been treating the other in a cruel and disrespectful manner. Perhaps the spouse is abusive towards the child or children or is trying to leave the area with the child or children. Those cases where there is or was domestic violence in the relationship, strongly held religious or ethnic differences or any other issue that polarizes the parties or where the trust factor is so low due to an affair are the ones that usually have to be litigated.
Mediation works well where the parties do have a good level of trust and believe that the other party will negotiate in good faith. Both parties are willing to entrust the process to a third-party neutral mediator. The parties have their own attorneys to back them up, review the draft agreement and make recommendations as to changes in the agreement; but the parties, by and large, do the hard work themselves in working out an agreement that each finds acceptable. The attorneys role is nominal in a well-done mediation as the draft agreement, which is not signed until the attorneys have reviewed it and made sure it comports with state and local court rules, usually comes to the attorneys in a detailed outline that can be put in final form with little additional work. The good mediators know what the court and the parties’ attorneys expect to see in the agreement.
The newest alternative to settlement in an amicable and respectful fashion and resolution of a difficult set of legal issues is the Collaborative Law process. Collaborative Law requires the services of two attorneys to be sure. However, in this type of case, the parties add a financial neutral to analyze and evaluate their assets including cash accounts, stock, bonds and retirement assets. The financial neutral presents an analysis to the parties of their finances and can often guide the parties in reaching a solution to division of assets and in settling support levels in a creative manner. Sometimes, but not always, one or two coaches are added to assist the parties in coping with the emotional currents a difficult divorce can raise. A child specialist can even be added to assist the parties in determining what custodial and visitation arrangement is in their child or children’s best interests. How creative do the parties need to be? Collaborative law allows the parties to consider every option and to think creatively. The various specialists, including the financial neutral, coaches and child specialist, are all able to be more dispassionate and objective than either of the parties in assessing and managing the parties’ expectations and needs during the process. While the cost may be higher initially with bringing on a full team, it does not turn out to be more expensive in the long run as the various specialists assist in reaching a quicker resolution that ultimately leads to an earlier end to meetings and a better, or at least, more nuanced written agreement crafted by the two attorneys that the parties can sign and feel good about.
So, which process works for you? If your case is one of love turned to hate, then you’re likely going to be litigating everything. If you and your spouse are confident in your ability to manage your own affairs and believe that you can engage in give-and-take with some input from your lawyers, then mediation may be right for you. And if you think that you each can get to the finish line with the assistance of a coach or two and a financial expert working in tandem with your two attorneys drafting a settlement agreement, then the collaborative process may be your best option.