Media Center

January 19, 2016
Publications

Divorce is a reality for many people and impacts more than the couple when children are involved. Mothers and fathers stress over the impact that a decision to divorce will have on their children. Often the decision to divorce is not a joint one which may mean the divorce process will be more contentious. There is really no way around the fact that the family structure will be different after a divorce. How the family restructures depends in large part on how the adults conduct themselves through the process and the decisions they make. There are some rare couples who can work through things on their own, but most couples will need legal assistance to navigate through the process. The court system is no longer the only avenue. Today there are process alternatives to traditional litigation.

Mediation is an alternative dispute resolution method that involves the use of a neutral third party to assist a couple in communicating and hopefully resolving the issues in their family. The mediator cannot make a decision for the couple, but can guide the conversation so that the couple stays focused on what they want to accomplish. A series of meetings take places with the mediator. The couple’s attorneys are not required to attend the mediation sessions. Upon reaching an agreement in mediation, a memorandum of understanding is typically generated which the parties can provide to their attorneys for inclusion in a comprehensive marriage settlement agreement. The majority of divorcing couples will find this approach to be cost saving, both financially and emotionally.

The collaborative process is another alternative dispute resolution method. This approach requires couples to focus on their needs and concerns, rather than their “positions.” It requires each party to retain a collaboratively trained attorney. The couple engages in a series of meetings following an agenda which the parties have established. The collaborative attorneys help the parties identify what is important to them and generate options which allow them to meet as many of their respective needs and concerns as creative than those resulting from litigation. Upon reaching a final consensus, this process also results in the formalization of terms into a marriage settlement agreement.

The collaborative process often involves the use of other third-party professionals who become part of the collaborative team. These potential team members can be mental health professionals, who serve as child specialists and coaches. As a coach, he assists the couple with communication issues and moving “forward.” The coach can also be very helpful to the attorneys by providing insight regarding the underlying needs and concerns of either party. The parenting specialist addresses matters concerning the children’s well being and co-parent communication. Couples can meet with the parenting specialist without their attorney to discuss these issues and often find it cost saving. Financial neutrals can assist with budgeting and consideration of the long-term economic impact of various financial settlement options. The use of a team of professionals may be appealing to some because the advisers needed to help make well-informed decisions are in the room at the same time. Others may view additional team members as an added and unnecessary cost.

Both processes allow a couple to address issues of property distribution, child and spousal support and parenting issues. It is possible, although uncommon, to use both processes in one divorce. This most likely would occur when a couple uses the collaborative process but has come to an impasse. That particular matter may then be referred to a mediator.

What happens if these approaches do not succeed? Traditional litigation is available. The collaborative process requires clients to obtain a different attorney to represent them in litigation and often, there is a waiting period to allow the parties to do that before anything is filed with the court. Collaborative attorneys view the prohibition on going to court as a necessity to allow full commitment to the principals of collaborative law on behalf of their clients. Despite this, some individuals may not trust the process enough to commit to it, knowing that if they do not successfully reach an agreement, new counsel will have to be retained. A failed mediation does not require the couple to retain different attorneys. The mediation sessions are confidential though and the mediator cannot be called as a witness in future litigation between the couple.

Another difference between the two processes is that mediation does not actually require the retention of an attorney, whereas the collaborative process does. Attorneys are always recommended for those in the mediation process to explain the law as it applies to a party and because mediators will not necessarily draft a final contract or pleadings for the couple. One attorney cannot prepare a final contract on behalf of both spouses and although one spouse may pay legal counsel to draft a final contract, the other spouse is well advised to obtain counsel to review the final terms on behalf of their specific interests. Challenges may arise when the agreement is reduced to contract form for signature, especially if the couple has not been consulting with their respective attorneys throughout the mediation process. When a couple commences mediation without consulting attorneys for advice on the law and how it might impact them, they usually will receive such information from an attorney when it is time to sign the final contract. This advice may lead to an unraveling of the mediation work done and the terms to which they have tentatively agreed, or result in addressing further issues with the mediator.In contrast, the collaborative process requires the couple to retain a collaboratively trained attorney to attend each of the meetings. The benefit is that everyone hears what is being said at the same time and questions are answered in real time. The couple does not have to wait for a meeting to end before consulting with their attorneys. When an agreement is reached, the attorneys work together to make sure the terms accurately reflect what was intended. It is unusual for a collaborative divorce not to result in a signed marriage settlement agreement once the couple has reached an agreement at their meetings. They have had the benefit of legal advice throughout the matter and their negotiations and agreement have been set forth in meeting minutes. There is much less potential for contrary advice or a change of heart.

The mediation and collaborative process both require communication skills. The collaborative attorneys work with their clients both before and during meetings to teach them how to communicate more effectively and respectfully. This is more direct coaching then takes place in mediation where the mediator may use his own skills to guide the discussions. A majority of marriages have very poor communication in the years leading to a divorce and assisting them to repair that will only help them after the process is over.

Both of these processes provide a positive impact on the children of divorce because, ultimately, it is also the children’s divorce. Using collaborative law or mediation often keeps at bay the increased negativity and bad will that stems from litigation. Collaborative law in particular allows for the emotions of a divorce to be addressed. The courtroom may be the place where emotions are “shown,” but they are rarely acknowledged to anyone’s satisfaction. Clients are often told that their feelings do not matter in the courtroom. Feelings do matter in a collaborative divorce. The parties are able to heal from the divorce more quickly when emotions are addressed. Parents who heal and can forgive will have a better post-divorce relationship, which benefits their children.

As this next generation of children become adults and enter into marriages of their own, it is unfortunately likely that divorces will continue. Workplaces and schools are training these young minds to work in collaborative ways. The use of these alternative dispute processes to assist them in restructuring their families will grow.