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Variations Between Mediation, Collaborative Law and Traditional Litigation in Family Law and Divorce Cases

November 14, 2008

I recently had an opportunity to sit down with a potential client who had acknowledged with her spouse a need to achieve at least a legal separation and possibly a divorce.  Her main questions were focused on how that process would work as she had some ideas regarding traditional divorce litigation, mediation and collaborative law.  Her case was not unlike pretty much all others in that the answer to the question of which process is optimal is unfortunately best answered with the benefit of hindsight after the matter has been brought to a conclusion. There are a number of factors for the parties each to consider when choosing a “dispute resolution model”, including the potential costs involved, how trusting the parties are of one another, and ultimately how they would like their divorce to look when it is finished.  With respect to this last consideration, the resulting Judgment of Divorce will, in many ways, be the same document no matter what course the parties chose to achieve that result.  However, how the parties feel about one another and how they are able to interact in a post-divorce setting may be markedly different.

The process of mediation involves the parties utilizing the services of a third-party neutral to help them achieve a Separation and Property Settlement Agreement to comprehensively resolve all aspects of their marriage.  The mediator does not represent either party and is tasked with facilitating a productive dialogue between the parties guided in such a manner to address the necessary issues of the case and then works with the parties to reduce their terms to a written agreement.  As a result, the mediator does not advise either party as to what a better outcome would be, but is able to provide general legal information so the parties can make their own decision.  The mediator should at least recommend, if not require, the parties to engage their own independent counsel at least prior to the execution of the Agreement if not beforehand.  Many people prefer this process as it provides them with maximum control of the outcome of their case which, generally speaking, can occur at their own pace as well.

In the process of collaborative law, each party retains his/her own independent counsel who has been trained in the collaborative law process.  The role of the attorney is to assist his/her client with achieving a stated goal of an agreed upon outcome that best serves the needs and interests of both parties.  A cornerstone to this process is an agreement at the outset to avoid litigation, to be honest and open and to act in good faith.  The parties are still able to go to court to the extent they feel it necessary, however, it would simply be with different attorneys involved.  This provides a financial incentive for parties to continue to work through their difficulties towards an agreeable disposition and also reinforces the fact that collaborative negotiations are used for that purpose only and can not be used against another party in subsequent litigation.  The attorneys in this process work together with the clients in a problem solving mode to assist the parties in achieving their own creative resolution.

More traditional divorce litigation is also often referred to as the “adversarial process” in which case it is advisable for both parties to obtain counsel to zealously represent their interests.  Parties in this process are not prevented from being kind to one another, from being honest or from ultimately entering into an agreement.  In fact, many parties realize at a minimum that it is more cost-efficient not to fight at length about every issue in their case.  Some parties, especially those with children, recognize the intangible benefits to seeking an agreed upon disposition as it helps to reduce some of the emotional costs that are inherent in any break-up.  Nonetheless, in this process, the parties are obviously free to be as agreeable or disagreeable as suits their needs and the Court is available to act as the ultimate decision maker to the extent that is what is sought by the clients.  Depending on the dynamics of the client and lawyer personalities, this process has the potential for the development of misunderstandings which may lead to further problems because the documents traditionally used are more strongly worded that what is often intended and the communications between the parties tend to be only through their attorneys in more of a positional “bottom line” type of approach.

Regardless of what process is chosen, everyone contemplating a separation or divorce or any other family law-related issue, for that matter, should take some time to think either independently, with a close friend or potential attorney regarding how they would like their circumstances to be when the case is over, how they would like the relationship component of their case to be affected by the legal component and then ultimately make a selection of a dispute resolution model that they feel may best help achieve that result.