Mediation, Collaborative Law and Divorce

Many people ask similar questions about the divorce process: "How long will it take?" and "How much will it cost?"

The answer to that question is "it depends." It depends upon not only the individual circumstances of your case, but also on your spouse and his or her attorney. Who will be your spouse's attorney? What may be their strategy? What is their philosophy? What judge will be assigned to your case? Keep in mind that the only control you have over a case is how you and your attorney approach the case, ideally working as a team. What will you do, how will you proceed, how will you respond.

When clients ask about the cost of their divorce, they usually refer only to the dollar amount out of their pocket (or their spouse's, where appropriate). But there are other costs as well: What is the price you pay for stress? For family discord? For disruption to your children's lives and to your work schedule?

The court process can be long and arduous. If the husband and wife are able to work out an agreement, that cuts down considerably on the time and cost of the divorce. This often happens—after some bickering, disagreement, filing and responding to court pleadings and court appearances, the divorcing couple finally works out an agreement that they can live with to settle the case. Less than 10% of all divorce cases actually go to trial. However, even a case that settles before going to trial can cost the couple thousands of dollars in attorneys' fees and costs.

What if you could "short-circuit" the time leading up to an agreement? What if you could eliminate going to court at all? Is it possible? Is it possible even if the couple is not in agreement and is not going through a "friendly" divorce?

The answer to all of these questions is an unqualified "yes," provided both husband and wife are willing to try ADR, or Alternative Dispute Resolution. Two forms of ADR are mediation and collaborative law. Many people have heard about mediation, but may not understand what it is. Few people have heard about collaborative law, and most people know nothing about it.

Mediation

Mediation is a process whereby a couple meet with a mediator (who represents neither one but impartially, and without legal advice, helps the two of them to reach agreements that can be as limited as one issue or as far-reaching as the complete divorce settlement. Usually, people utilizing mediation also have their own divorce attorneys to consult with during the mediation process. When the process is successfully completed (and most, but not all, are), the mediator provides the couple with the agreement they have reached, which then goes to their respective attorneys to be re-drafted as a Marital Settlement Agreement and brought to court before the judge for the final decree, or Judgment, to be entered.

The Mediation Agreement, however, is not binding until it is entered in court as a Judgment. Sometimes, if their attorneys do not like the agreement they reached, or one of the parties has a last minute change of mind, the agreement falls apart, the mediation derails, and the couple goes back to litigation. Nonetheless, even if that should happen, going through the mediation process with a skilled mediator may still help the divorcing couple to narrow the issues, help them settle some, if not all, of their differences, and help facilitate a smoother and less fractious divorce process.

Keep in mind that while mediators do not have to be attorneys, reputable mediators usually have gone through extensive mediation training. You should always ask about a mediator's credentials and experience during your selection process.

Collaborative Law

Collaborative law, on the other hand, takes a unique and dramatic step toward preventing the final agreement from falling apart. This is because attorneys who practice in the new and growing field of collaborative law must pledge, in writing, at the beginning of each case, that they will not and cannot represent the parties to the case in court and can only act in an advisory and advocacy capacity during the negotiations.

This is a startling concept to most people—attorneys who agree not to litigate! But it is the driving force behind the collaborative law concept. Because both parties must hire collaborative lawyers for this to work, the negotiations are geared for collaboration, cooperation and settlement rather than for intimidation by threats of litigation if one party does not give in to the other. And, unlike mediation, in collaborative law the parties are each represented by counsel whenever they meet to negotiate. Each has the security of knowing that they will be negotiating with knowledge of the law, and the guidance of a proven and caring practitioner by their side while attempting to work out the settlement.

How does this work? In a collaborative law case, each party selects a lawyer of his or her own choosing who is trained in the practice of collaborative law. Each lawyer then signs a collaborative law stipulation. This is, in effect, a contract between the lawyer and her or his client in which the lawyer agrees to serve as settlement counsel only. This means that each lawyer is contractually barred from ever going to court in this divorce case, whether to represent the client or to testify on behalf of the client in this matter.

Does this mean you can never go to court? No, you always have a constitutional right to access to the courts that you cannot give up, even by consent. What it does mean is that if you and your spouse fail to reach an agreement after going through the collaborative law process and you decide to proceed to court, you each must hire new attorneys and, in effect, start your cases over.

As you see, in collaborative law, unlike a traditional divorce case, the lawyers as well as the clients share the risk of failure. Distributing risk is powerful. Without it, the option of going to court as part of the negotiating process remains a threat to settlement. Why? Because by going to court the clients ultimately lose control of their own cases, letting lawyers and judges make decisions that they ideally should be making, all the while incurring the escalating costs of litigation. In the collaborative process, it is the parties who retain control over the ultimate settlement.

Is collaborative law for me? Divorce is rarely easy. It is often painful. If you and your spouse wish to actively participate in your own settlement, if you both have the ability to work toward making difficult decisions that affect you and your family, and if each of you is willing to meet with lawyers who practice collaborative law to find one to represent each of you, you will be able to determine whether or not the collaborative approach is what you may wish to choose. By choosing collaborative law, you may be able to end your marriage without destroying the lives involved in it.