Mediation and Collaborative Divorce

Divorce involves resolving a number of complex and diverse issues during a very chaotic and emotionally-charged time for the couple. There are financial issues related to valuing and dividing assets and debts from the marriage, strained cash flow issues related to the need for the family income to now support two homes rather than one, child welfare issues related to how each parent’s relationship with the children will continue after separation, and mental health issues with each parent experiencing some sense of loss from the breakdown of the marriage. The trust between husband and wife that was the cornerstone of the marriage is gone, and with that lost trust is the fear that the other spouse will stop at nothing to take more than his or her fair share.

The traditional divorce process has the husband and wife hiring separate attorneys to “fight for their rights.” Husband and wife are adversaries and their attorneys set out to paint their client in the most favorable light, while focusing on drawing out the shortcomings of the other spouse. The court must sift through these biased interpretations of the facts and make a decision regarding these complicated issues, oftentimes considering diametrically opposed accounts of the same incident. Judges are placed in a situation where they must make final decisions about how property will be divided, how much support will be paid, and when each parent will spend time with their children. These same judges will admit that they are not the ideal people to be making these decisions.

This adversarial process exacts a substantial toll. Whether or not parents intend it, the children sense the conflict between the parents, and can easily feel as if they have been placed in the middle of the dispute. During the divorce, whatever trust that remained after the breakup of the marriage is further destroyed by the battle waged in the process. In addition, there are substantial legal fees involved in getting the case before the judge. The litigated outcome is seldom just what the client wanted; more often, each spouse leaves trial feeling they have lost.

Many divorce professionals recognize the shortcomings of this adversarial approach. A focus has been placed on finding a way to resolve the issues of the divorce in a way that protects the children from the process, involves the couple in making their own decisions, and strengthens rather than further deteriorates the relationship between the couple.

One such option is mediation. The couple hires a mediator to help identify the issues of their divorce and to help the couple communicate with each other to craft their own solutions. The mediator is not providing legal advice to either spouse and is not a decision maker. The mediator attempts to navigate the couple through any emotional issues that may hinder communication, so that the couple can focus on resolving the substantive issues of the divorce. Some drawbacks to mediation include problems with assuring that both spouses are able to make educated decisions, assuring that both spouses are informed of their individual rights, assuring full disclosure by both spouses, and resolving situations where there is an imbalance in power between the spouses.

To remedy some of the shortcomings with mediation, a second alternative to the traditional divorce process is collaborative divorce. In collaborative divorce, each spouse hires an attorney trained in the collaborative process. In addition, each spouse hires a coach who is a mental health professional to help with the emotional issues of the divorce, and to help each party effectively communicate with one another. The couple also jointly hires a financial planner and if there are complicated child issues, a child specialist. The couple and the “team” of professionals sign a collaborative agreement stating that the couple will resolve the issues of the divorce outside of court. The parties further agree that they will provide full disclosure, including obtaining any necessary documents to accurately value assets.

Collaborative divorce allows for the most qualified professionals to be available to help the couple when needed. When considering the future financial needs of the couple, a trained financial planner is in a better position to provide projections and sound financial advice than an attorney. When trying to resolve the emotional fallout which is hindering communication, a trained mental health professional is in a better position to help the couple through the issues. The attorney has much more opportunity to focus on the legal issues of the case.
  
Collaborative divorce is not for everyone. Having five or six professionals working on a case can be financially intimidating to a couple considering an alternative method. There is no question that collaborative divorce is a healthy alternative to traditional divorce. The agreement to cooperate with full disclosure and to not litigate saves substantial costs associated with formal discovery and the preparation of declarations otherwise used in litigated cases. Even so, many couples who are open to using alternate methods to resolve their divorce feel collaborative divorce is too expensive.
  

Variations of Alternative Methods

There are many variations to these alternative forms of handling a divorce. For instance, one variation of mediation uses two mediators – one of the mediators is an attorney and the other is a mental health professional. Many of the pitfalls with communication problems and power disparity can be addressed better with this combination as compared with a single mediator. Participating in mediation does not mean that either or both of the spouses cannot have an attorney, and any mediated divorce can and should be reviewed by an attorney for each spouse.

While the preferred collaborative divorce model calls for the full team of professionals discussed above, another option is a variation of the collaborative divorce using a partial team. The full team approach recognizes that when difficult dynamics prevent the couple from successfully resolving disputes, it is more helpful to have a mental health professional available for the couple than an attorney. Likewise, the financial specialist’s training places him or her in a much better position than an attorney to consider the future impact of the property and support decisions being made at the time of divorce. However, when the couple, to their credit, has already overcome some of the obstacles to a smooth and civil divorce process, they can attempt to proceed collaboratively with a partial team. Agreeing to use a partial team is a commitment by the couple to resolve their own issues with the help of select professionals, and this approach, while maybe not the ideal one, is certainly better then a traditional litigated divorce. Options include the couple using one joint coach through the process or using the financial planner in a more limited capacity.  For example, family law attorneys are accustomed to dealing with the financial issues surrounding divorce and may be able to resolve the case in a collaborative fashion without the full team of professionals. Moreover, the couple may be able to effectively communicate without the assistance of a coach.

Cooperative divorce is another variation to these alternative forms. In cooperative divorce, the couple selects collaboratively-trained attorneys to represent them. An agreement is signed, again regarding full disclosure and non-litigation. If either spouse chooses to litigate, both spouses must find a new attorney. The attorneys and the couple work on coming up with creative solutions to the problems that arise. If there are communication problems, then the couple, with the advice of their counsel, may involve a coach or another appropriate professional to help them through difficult issues. This approach assures that the couple and their respective attorneys are committed to working as a team to come up with a healthy and reasonable solution to the issues. This approach has the potential to be cost-effective, efficient, and civil.

A common thread involved in all of these alternative approaches is that by involving the couple in the process and setting up open lines of communication between the couple and the professionals, a much more favorable result can be reached. By finding a way to work together to come up with their own solutions, the couple can begin to respectfully communicate and begin to re-establish the trust that may have been lost. This ability to communicate civilly and solve problems effectively sends a message to the minor children that their parents are going to be all right. The end result is that the people most familiar with the case are making the decisions, with the assistance of professionals focused on fashioning successful solutions.