By Gary L. Borger, Esq.
Divorce traditionally has involved each spouse engaging an attorney who negotiates settlement of custody and a parenting plan or schedule, spousal support (alimony), child support, division of marital property and debt, insurance, and other related topics with the client’s authority. (Although some separating couples can negotiate settlement directly between themselves, most spouses are too emotionally charged to be able to negotiate a rational settlement directly.) Negotiating through attorneys can be time-consuming, expensive and protracted as each communication between the attorneys in the negotiation process first involves communication between the attorney and the client, with the same delay occurring at the other end as everyone tries to touch base while the clients work and/or attend to children and attorneys are in court or meeting with other clients or are otherwise unavailable when the client is available. Also, the manner of communication between attorneys takes on the personality of the attorneys, not those of the clients. Thus, when what a client tells his attorney is worded differently to the other attorney, a very different response may be forthcoming from the other spouse than might have occurred had there been direct communication between the spouses. (Of course, the opposite sometimes is the case, that is, the attorney can soften what the client has said so as not to enflame the other side and drive the spouses farther apart in the negotiations.) While an attorney-negotiated settlement certainly is much less costly than litigating (trying the case), there are other options.
Alternative dispute resolution is the name given to various vehicles for resolving disputes other than litigation (using the court process). This article will discuss two, namely, mediation and the collaborative divorce process and how they are similar and how they differ.
Mediation involves the spouses retaining a neutral mediator as a facilitator of settlement negotiations. The spouses meet together with the mediator, often on a weekly or bi-weekly basis (although sometimes more time is needed between meetings for “homework” to be done, documents gathered, etc.). During those mediation sessions the spouses negotiate directly with one another in the presence of the mediator who keeps them on track and makes sure they touch all bases that must be covered in their settlement negotiations for no stones to be left unturned. If at the conclusion of the mediation process the parties have reached an agreement the mediator drafts a memorandum of understanding or a draft settlement agreement which memorializes the settlement terms that came out of the mediation. Although many mediators are attorneys with family law experience, the mediator does not represent either spouse and should not be giving legal advice. The smart way to mediate is to meet with an attorney first to find out the parameters of a likely outcome under state divorce and custody law were the dispute to go to trial. This way the spouses have an idea in their settlement negotiations with one another how far the proposed settlement terms being discussed are from the likely outcome if a judge were to make the decisions for the spouses under the applicable state law. (In mediation the spouses are not bound by the law but can fashion their own settlement terms without regard to what a judge would be compelled to do after trial under the law. This gives the spouses much more latitude than they would have in court where the judge must apply the law to the facts of the case as he or she determines those facts after hearing the testimony of both spouses and all other witnesses and reviewing all relevant financial and child-related documents.) While mediation is fine for some couples, where there is an imbalance of negotiating power between the parties, where there is a psychological dynamic of subtle intimidation between the parties, and/or where one party is much more financially savvy or more knowledgeable about the family finances than the other, or due to myriad other situations, the result can be a “lopsided” settlement as it is not the mediator’s job to help either spouse but rather to keep the negotiations moving forward and to make sure all bases are covered in the spouses’ direct negotiations with one another. Neither is it the mediator’s job to force the parties to settle on terms which the mediator feels are fair as only what the parties determine is fair to them is what matters. When mediation is complete, the mediator drafts a memorandum of understanding or settlement agreement. Ideally the spouses will take that memorandum or draft agreement to their respective attorneys with whom each will discuss the proposed agreement. My experience has been that there are cases where, after mediation is complete, one or both attorneys will “urge” changes which can derail the entire mediation process, forcing the spouses into litigation and making the mediation process a waste of time, energy and money. While this doesn’t happen in the majority of mediated cases, it is a risk of mediation.
The collaborative divorce process has many of the attributes of mediation. It involves the parties negotiating directly with one another toward achieving a settlement on terms that the parties themselves have fashioned and which they feel are fair. However, in the collaborative process there rarely is a mediator present; rather, both attorneys attend all negotiating sessions to counsel the client and to take the client aside from time to time to discuss what is going on in the negotiation session to make sure the client is aware of the legal effect of what is being discussed and to try to prevent the client from sabotaging or undermining him- or herself as people sometimes do in emotionally charge divorce negotiations. The presence of attorneys can help to prevent one spouse from overpowering or taking advantage of the other. It also helps make sure that the necessary exchange of financial documentation (tax returns, W-2s, 1099s, pay stubs, bank account statements, investment account statements, credit card statements, real estate and business documents, etc.) takes place so that any settlement achieved is based on a sound financial foundation rather than merely based on the “trust-me” principle. (In a good mediation, ideally the mediator will urge the parties to engage in the same financial document exchanges but one spouse can prevail upon the other to “trust me” and waive the right to see documents to show that what the other spouse is saying is backed up by documentation.)
The attorneys also take on a different role than they would in litigation or negotiation while you are in divorce litigation. While each attorney still represents his or her client in the process, each attorney is trained to collaborate in the process, to look for solutions that the spouses may not see and to offer the spouses as many options as each attorney can come up with so that you have more options on the table for your settlement. This is one of the most unique concepts of the collaborative divorce process.
Another very different aspect of the collaborative divorce process is that, although each attorney represents only one spouse, contrary to traditional adversarial attorney negotiation, attorneys trained in the collaborative divorce process are constantly looking for options to “put on the table” for discussion as the attorneys pick up cues from the spouses during the negotiation process that highlight what really seems to be important to each spouse (beyond what the spouses are saying).
You also should be aware that the attorneys in the collaborative divorce process are at all times focused on settlement not litigation. In fact, in the collaborative divorce process both spouses and both attorneys sign a participation agreement which states, among other things, that if the process is aborted because someone wants out of it to pursue the dispute through court, neither attorney can represent his/her client in the litigation process. You should be aware that litigation is a dispute resolution model in which each side fights for his or her client against the other side toward the impossible goal of “winning.” While that model may work for criminal cases, car accident cases, malpractice cases, consumer fraud cases, and even some contract disputes, it is inappropriate, in this writer’s opinion, for family disputes such as divorce where the parties will have an ongoing relationship in the future. Litigation is inefficient and wastes your financial resources. Although over 95% of all divorce cases filed in court ultimately settle, settling your case in litigation with the attorneys fighting each other and proceeding through the cumbersome and inefficient court process not only wastes money, it also produces a lesser-quality agreement that may not meet your individual needs and those of your spouse as you have less control over the content of the agreement.
A very different concept arose during the development of the collaborative process which began in Minnesota in the early 1990s by a family attorney after finishing an especially contentious divorce case, with its attendant emotional impact on him. He was working on developing a better, more friendly way for divorcing spouses to resolve their disputes. He came up with the concept of introducing neutral child and financial experts into the negotiating process. Financial experts sometimes are involved in both litigation and mediation where one or both spouses own or have an interest in a business or professional practice or where there may be an issue of cash income, and sometimes a child custody professional (such as a psychiatrist, psychologist, social worker, family therapist or the like) is brought in. However, it is not the norm to bring such experts into the mediation sessions (although sometimes a financial expert is involved where a spouse owns or has an interest in a businesses or professional practice or where there is cash income, and sometimes a mental health expert is consulted on child-related issues. By contrast, in many collaborative divorce cases the parties include a neutral financial professional to help them develop accurate budgets of their future support needs as consistent with the marital lifestyle as the combined incomes of the spouses will allow, to value interests in businesses or professional practices, and to clarify the true income (the total package of financial benefits flowing out of the business or practice) which such businesses or professional practices provide to the business owner or professional.
Another wonderful tool in the collaborative process is the use of a divorce coach. This is a mental health expert (psychologist, social worker, family or couples therapist, etc.) who sometimes meets with the parties (alone and/or separately) without the attorneys being present and who also may attend the settlement negotiation meetings (often called 4-way or 5-way meetings depending on whether just the spouses and attorneys attend or whether a financial expert or divorce coach attends as well). A divorce coach can work wonders in the process. As anyone who has gone through a divorce knows quite well, separation and divorce, and the negotiations that ensue during the separation, are highly charged emotional events, touching raw nerves of both spouses. The divorce coach can work with the spouses to get them to overcome some of their emotional reactions to hot-button comments which can impede settlement or make it much more protracted and thereby more costly. The divorce coach also can help the spouses learn to communicate on a more rational and mutually beneficial level (and for the benefit of the children). This can result in a higher level of settlement for both spouses. The spouses also may learn and carry with them into the future better communication skills so that they can discuss and resolves issues that come up in the future without the need to return to attorneys to work out such disputes. The divorce coach also can help immensely with child-related discussions as child development is an integral part of every mental health professional’s education and training. In this fashion, the divorce coach can offer invaluable advice to the parents on options which they might not consider on their own in terms of developing a parenting plan or to resolve other parenting disputes or issues tailored to the age, the level of emotional development, and emotional issues of each child.
A question often asked is whether due to having a divorce coach and/or financial expert will result in more expense to the family. My experience is that the benefit of having such neutral experts at the table results in a better, fairer settlement which focuses on the children’s best interests, and which, in the end, can actually save you money as the process is more likely to move along more quickly than if the emotional roadblocks are not addressed by an expert who can help the spouses move around, over or beyond them and on to a final settlement.
What do mediation and the collaborative divorce process have in common?
- You and your spouse control the outcome as opposed to litigation where the judge makes decisions for you.
- You and your spouse speak directly to one another, not through attorneys outside your presence or even in your presence, forcing you into a subservient role in the process.
- You work on communication skills, making it more likely that you’ll be able to work out future differences without having to return to attorneys and/or the court.
- The cost is less than litigation or even a negotiated settlement that comes out of litigation.
- Resolution is quicker than the court process.
- You and your spouse establish the pace of the process; in litigation the court system determines the pace of your case (which might be too fast but which usually is too slow for most people going through divorce.
- Meetings take place in attorney offices not at the courthouse.
- Both are confidential; court proceedings create a public record which anyone (even your children when grown) have public access to read.
How do mediation and the collaborative divorce process differ?
- Your attorney is by your side throughout the process.
- You can utilize a divorce coach who is trained and experienced in dealing with emotional hurdles which interfere with settlement.
- You can have a custody expert in the divorce coach or in another mental health professional to help assure you that your agreement is in your children’s best interests.
- The ultimate agreement is likely to be better as you have two attorneys collaborating in the process, not fighting each other, even though your attorney represents you and the other attorney represents your spouse.
In summary, the collaborative divorce process can be a wonderful means of resolving divorce disputes without giving up the right to have a lawyer involved in each step of the process (having your lawyer by your side as you negotiate with your spouse). It also affords you the opportunity of benefiting from the education, training and experience of financial and/or mental health experts as you negotiate a final settlement with your spouse.