You've heard the saying "Don't throw out the baby with the bathwater." Those words should serve as a warning for divorcing couples.

The proverbial "baby" about to go down the drain in a court battle is the family unit, the long-term friendship with a life partner, and a lifetime of memories. The value of preserving these treasures should far outweigh most "gains" of fighting in court. In most cases, I tell my clients, "Don't litigate, collaborate."

Today, more and more divorcing couples are proceeding out-of-court – whether they are parents of young children or older couples, perhaps ending a long-term marriage (with grown children and grandchildren).

Mediation and collaborative law divorce are both considered alternate dispute resolution ("ADR"). Both are alternatives to going to court. In both methods, the monetary costs of divorce are considerably less than if the parties took their case to the court to be heard. And, with these methods, there is no exacerbation of the emotional pain of divorce. However, the biggest benefit is that the couple retains more control over their future when they mutually work out their divorce.

Mediation

Art and Linda, a couple with grown children, hired me as their mediator. Art and Linda are not "quitters." They were ending a 22-year marriage, but they didn't like the sound of a "failed marriage." Furthermore, they considered their marital accomplishments a success, even though they had now decided to go their separate ways. They came to me for mediation because it was an opportunity to save their friendship.

When I am hired as a mediator, as with Art and Linda, I am a neutral third party. Although I am a lawyer, I do not represent either Art or Linda. Instead, in our sessions I assist them in discovering their individual interests and exploring their options. I facilitate discussion. Art and Linda reached agreement on each issue that needs to be addressed. Additionally, I drafted their Marital Settlement Agreement ("MSA"), which we submitted with their judgment. When it was signed by the judge and filed in court, it was every bit as enforceable as if the judge had made the orders in open court. Yet, absolutely no court appearance was necessary.

In mediation and also in collaborative family law, we have a better opportunity to look more broadly at the issues of divorce than a busy judge does. The judge cannot take the time for this. One judge in Ventura used to say, "I don't do furniture."

But, when something comes up that both parties want to address in a mediation session, we can and do deal with it. My colleagues would probably concur that it is often the "small stuff" (a painting, a television, or piece of furniture) that interferes most with settlement.

We often use a collaborative mental health practitioner as a "coach" for the parties' communication or as a reference on the best interests of the children. All experts we use are neutral fact finders to assist the process – not on one "side" or the other. The costs are much less than those in a litigated case where parties will express their emotional needs, putting on pressure through litigation.

Collaborative Family Law

When I am hired to represent a party in a collaborative law divorce, I communicate readily with the other party's lawyer. (Collaborative professionals receive specific collaborative family law training.) Each party and his or her attorney sign the collaborative law agreement that confirms our commitment to settlement. This collaborative agreement limits the parties from "going to court." It states that the lawyers either settle the case or face being "fired," with the parties then required to "start over" with new lawyers to go to court.

In collaborative law divorce, progress is accomplished through telephone calls, letters, and "four-way" meetings. It is a "no court divorce."

The parties benefit from the wisdom of two lawyers and each party has an advocate by his or her side throughout the process. In collaborative law divorce, just as in mediation cases, divorce costs are greatly reduced. In my experience, the cost can be one-fourth the cost of a litigated case. For example, the parties use a single expert to help them with valuing a parcel of real property or a stock plan. In a litigated case there can be a "battle of the experts" for each party.

Courts have long encouraged lawyers to settle their cases because people are more satisfied with "out-of-court" settlements. They rarely return to court after the judgment is entered. On the other hand, litigated cases often return to court.

The Presiding Judge in Los Angeles County, Hon. Aviva K. Bobb, is outspoken about the benefits of ADR, as is the Presiding Judge in Ventura County, Hon. John R. Smiley. Judge Smiley provides a letter to those who file new family law cases. He suggests they consider ADR, such as collaborative family law or mediation, for their divorce cases.

Couples who proceed out of court will not become bogged down in the negativity of litigation. Like Art and Linda, they do not tarnish the success of their marriage with a “bloody" divorce. They can continue to be friends in the future. They do not "throw out the baby with the bathwater"!