For Peaceful Divorce, Couples Find Collaborative Law a Viable Alternative

Why are more attorneys and clients turning to collaborative law? Because the divisiveness of the adversarial system has failed many of them and mediation, alone, is not the answer. Divorcing couples have four basic options for settling their issues: by themselves (the dining room table option); using a mediator with consulting attorneys; retaining attorneys who practice collaborative family law; or hiring attorneys to negotiate or litigate, if necessary. Each couple is different.

As an experienced matrimonial trial attorney, trained and practicing mediator, and collaborative family law attorney, I am able to explain and describe to prospective clients the advantages and disadvantages of each process. My clients can, with full unbiased disclosure and education, decide for themselves which resolution method will work best for them.

For mediation to work, each spouse must be able to rely on the other to be honest and forthcoming with all financial information. While attorney-mediators in our area advise couples to hire consulting attorneys, often the lay mediators do not. The spouses negotiate for themselves in the mediation sessions, with the help of the neutral mediator.

The collaborative process combines the problem-solving focus of mediation with the attorney advocacy of traditional representation. Husband and Wife and both of their attorneys agree to ground rules for the negotiation of a settlement, those rules being based upon mutual respect, honesty, and the belief that the collaborative process will help the parties create the best settlement, long term, for themselves and their family. The collaborative attorneys withdraw and disqualify themselves and their firms from representing the couple in adversarial proceedings if the collaborative process should break down (and it rarely does). There is built in protection because the attorneys are ethically and legally bound to ensure that there is full, honest disclosure as required by the law.

Collaborative Law presents a unique opportunity for divorcing couples to resolve their family situation with dignity, privacy and with competent and accurate legal advice from professionals, trained and licensed to practice law. The potential for positive growth and change is present in this process with the collaborative attorneys modeling for their clients constructive, cooperative problem-solving at the same time that they offer advocacy and support at the negotiation sessions.

Mediation is not significantly less expensive than collaborative law if we are working with similar couples – if we compare top notch mediation aided by consulting attorneys to top notch collaborative law with the advocacy of counsel built in, the cost is comparable. I would expect that for couples with a higher level of conflict or more complicated issues (more appropriate for collaborative law than mediation), the cost would be higher. But we should compare apples to apples so that the public is not misled.

There is a place and a definite need for traditional legal representation. It may well be the only way to protect a client when one spouse is impaired (mentally unbalanced, abusive, destructive), is intent on hiding assets, or refuses to participate in an alternate dispute resolution model. Again, if we compare top notch practitioners with one another, those traditional attorneys do their best to resolve the issues without litigation and without unnecessarily inflammatory conduct.

Mediators in our community charge $80 - $200 per hour and matrimonial attorneys charge between $150 and $250 an hour for their time. The cost for a divorce process – whether mediation, collaborative law or traditional representation - is a function of time. The lower the conflict and the higher the functioning ability and integrity of the couple, the less expensive completing the settlement will be, regardless of process.

Collaborative family law attorneys are not turning their backs on traditional litigation when it is necessary and we are not denigrating mediation when it is the appropriate process. We are offering another alternative. We believe that clients should be able to choose the process that fits them best – whether that process is mediation, collaborative law or traditional legal representation.

We all owe it to the public to present honest information about the available options and permit couples to make informed choices for managing their family law issues. This is not a question of mediation versus collaborative law. The processes are sisters, not enemies.