COLLABORATIVE DIVORCE MEDIATION

CHOOSE WISELY

By: Brian Don Levy

www.collaborativeattorney.com

            When we have an important event in our life, we think things through, evaluate choices, and plan carefully for success.  For example, when we get married, most of us spend a significant amount of time and resources planning every aspect and detail of the event, by evaluating choices and carefully planning.  Many important choices are made regarding the date of the event, the event location, event decorations, event transportation, bridesmaids, groomsmen, wedding party gifts, the vows, the minister, the color scheme, the caterer, the photographer, the flowers, the music, the first dance, the Bride’s guest list, the Groom’s guest list, the gift registry (item by item, room by room), and on and on it goes.  With each individual component the couple and their family considers the information, evaluates choices, and carefully plans each separate component so that when all of the separate components are put together, the wedding event meets the needs of the family that is being united on their special day.  Each individual component is carefully examined, thought about, and the family chooses wisely.  Then each individual component that was carefully thought about and chosen is put together, and the event is essentially completed in a day.

Sometimes life happens, mistakes are made, trust is broken, and for any number of reasons we find ourselves choosing a divorce.  It is at this point in time that we should carefully evaluate choices, plan and choose wisely.  But we don’t.  Because we are hurt, angry, judgmental, have unmet needs and are enmeshed in a sense of being right or being a victim, we run to a litigator and begin the process of going to court and turning the important decisions in our life over to someone else.  We do this without stopping to think that choosing a divorce process is a very important choice to make, one that will materially effect the outcome of our transition and could potentially define the legacy that we will be creating for our children and other family members. 

Because we are hurting, because trust has been broken, and because we can no longer communicate effectively with our spouse, some of us want the one thing by going to court that we will never get.  We want the judge to look at our spouse, and say something like “That was a terrible thing that you did – how could you have done that to your spouse?”  We want vindication of our being right and the other side being wrong.  WE want speedy vindication and justice.  But we don’t get these things by going to court.  Instead, we find ourselves in a broken system, with decisions being made based on a snapshot of the family bound in the law, instead of being made to meet the needs of the family.

The divorce process involves many important choices, and the law is only one choice.  The law is usually the most expensive and least rewarding choice.  Let’s explore some other process choices that should be evaluated by families in crisis and transition.

COLLABORATIVE DIVORCE FULL TEAM MODEL:  This is a team process where the family hires a team of collaborative professionals, each trained to meet the legal, emotional, financial or parenting needs of the family.  Then full team consist of 2 lawyers, 2 divorce coaches, 1 neutral financial and 1 child specialist.  It may sound overly expensive because of the number of professionals involved; however, statistics support the conclusion that the full team is less expensive than hiring 2 litigators to duke it out.  The divorcing couple “opts out” of the judicial system, works with their team of professionals to achieve a peaceful resolution of their family’s concerns, and then an agreed upon judgment is submitted back to the court for the Judge’s signature.  This is a no court divorce.  This is a divorce process that is specifically designed to meet the needs of the family, to address their unique hopes and concerns, and to position them to achieve success as they define it for themselves.

COLLABORATIVE DIVORCE HYBRID TEAM MODEL:  This is a team process where the family hires a team of collaborative professionals, each trained to meet the legal, emotional, financial or parenting needs of the family.  Instead of using the full team, the family with the help of a Collaborative Divorce Professional designs a smaller Collaborative Team that is intended to meet the family’s unique needs.  The “Team” might consist of 1 collaborative mediator, 1 or 2 divorce coaches, 1 neutral financial and 1 child specialist.  It might also consist of 1 collaborative lawyer\mediator and 1 divorce coach working together to provide a co-mediation, or it might look like 1 collaborative lawyer, 1 divorce coach and 1 neutral financial working together to provide co-mediation.  Because each family is unique, their hybrid collaborative team will look different.  No matter how the hybrid team is shaped, the divorcing couple “opts out” of the judicial system, works with their team of professionals to achieve a peaceful resolution of their family’s concerns, and then an agreed upon judgment is submitted back to the court for the Judge’s signature.  This is a no court divorce.  This is a divorce process that is specifically designed to meet the needs of the family, to address their unique hopes and concerns, and to position them to achieve success as they define it for themselves.  

MEDIATION:  Traditional mediation is the divorcing couple working with a mediator.  Sometimes the mediator will recommend to the couple that they bring in a specialist for a specific task, such as a child specialist or financial professional.  The divorcing couple “opts out” of the judicial system, works with their mediator to achieve a peaceful resolution of their family’s concerns, and then an agreed upon judgment is prepared.  Each party then takes the agreed upon judgment to their own consulting attorney who helps them understand the settlement, and discusses their unique concerns before the judgment is signed.  Then the judgment is submitted back to the court for the Judge’s signature.  This is a no court divorce.  This is a divorce process that is based in the law and is intended to meet the needs of the family.

LATTE METHOD:  The couple decides to meet at Starbuck’s; each orders a Latte, sits down and has a peaceful conversation about how to transition their family.  If they have a complete agreement they write down the basic components on a napkin, initial it, and take it to their local Paralegal Assistant or Divorce Attorney to prepare, process and complete the divorce paperwork necessary to finalize their agreed upon divorce based upon their mutual agreement and not based upon what someone else decides for them.  Sometimes a couple can agree on almost everything, but needs some help, so they can consult together on the area they need help in.  For example, they need a little help on completing their co-parenting plan, so they consult with a child specialist to assist them in completing their plan in a child centered way.  This is a no court divorce.  This is a divorce process that is based in the law and meets the needs of the family because it is created by the family for the family.

The divorce process can last anywhere from six months to two years or more.  I believe that as much effort that is put into the wedding likewise is called for if the couple ends up divorcing.  Unfortunately, most couples spend months planning for a wedding that spans less than a day, and spends little to no time planning a divorce process that can last from months to years.

At the end of the day, it is planning and evaluating choices that ultimately define our success as well as our failure.  I believe that if couples put as much effort into choosing a divorce process as they put into their wedding planning, there would be far more peaceful solutions, and far less unmet needs and wasted financial resources.  If your marriage comes to an end, cannot be saved, and divorce is your only option, CHOOSE WISELY!

Collaborative family law is a powerful and effective way for people who are divorcing to reach fair solutions and resolve differences, using highly trained and skilled professionals, while avoiding the cost and uncertainties of litigation. Collaborative family law is about achieving a fair and equitable settlement and assessing and accomplishing the thoughtful restructuring of the family.

The collaborative family law process is progressive because it allows couples to obtain the positive advantages of legal, financial, psychological and personal assistance in sorting out the complexities of their divorce, while at the same time focusing on issue resolution and family growth while completely avoiding the harmful disadvantages of the adversarial litigation process.

Only collaborative family law addresses the whole picture that is involved in divorce. It recognizes that divorce is more than a legal procedure or event. It is also a time of intense distress and proves to be challenging for the parties and particularly for the children. Many financial issues are involved and often they are complex. Because it does address the whole picture, the collaborative law process helps parties achieve a more complete, enriching and long term resolution.

In this process, parents and children tend to suffer fewer traumas, heal faster and have better relationships with each other after the divorce. Additionally, children are protected from the most devastating aspects of a family break-up.

People can use the collaborative family law process to resolve all of their issues, including child custody and visitation issues, property division and support. Post-divorce issues, such as adjustment of time with children or adjustment of support, can also be solved with collaborative law.

How Does It Work?

In a collaborative divorce, you will create a “container” that can be filled with a team of experts who will work with you in an exchanging and meaningful dialogue directed toward the identification of and resolution of issues. The various individuals who work within the “container” can and will vary based upon the needs of the individual divorcing couple. You can have your own attorney who will provide you with full legal protection and advocacy. You will also have support and coaching from a psychological expert. There can also be a neutral financial professional to provide analysis and advice. All financial information is exchanged voluntarily and completely. The divorcing parties are still bound by their fiduciary duties of good faith and full and complete disclosure of assets and debts among other things. Your attorney helps you to assess the information and provides guidance and options.

A series of multi-party meetings is scheduled to systematically identify and examine the issues, explore options and work toward an agreement that satisfies both parties. An agenda is set for each meeting in advance, so that everyone is clear on what issues will be discussed during any given meeting. Attorneys can meet with their clients to prepare for each meeting.

A problem-solving approach is always used, centered in "interest based negotiations".  Collaborative attorneys and Collaborative Mediators are trained in collaborative practice as well as interest-based negotiation, and they help the parties to work productively to find agreements that meet the real interests of both. This type of negotiation allows both sides to win ("win-win” negotiation as opposed to the “win-lose” litigation model).

The collaborative family law process is voluntary, and both parties must agree to participate and to continue working together until resolution is achieved. This means that each participant has a stake in being fair and cooperative, because uncooperative behavior will cause the process to terminate and force the parties back to the litigation model.

If the process does terminate, the parties continue to have all of their rights and remedies under the law. The collaborative attorneys will withdraw and the parties can proceed to hire counsel to take the case to court and have their matters be decided by a judge.

What are the differences between litigation, mediation and collaborative divorce?
Litigation Model

The traditional litigation model displays clients talking with their lawyers, and in turn the lawyers discuss positions with each other. As you can see, the communications in this model are restricted and designed to empower the lawyers. If the lawyers are unsuccessful in bringing about a solution, the decision-making authority is turned over to a judge who will know little about you and your situation other than a quick snapshot view.

This model is antiquated, and burdened with heavily congested calendars and closings of courtrooms due to budgetary consideration.

The traditional mediation model has a number of advantages over the litigation model; however, the dialogue is once again restricted. Divorcing parties talk with a mediator, and then may choose to consult separately with a lawyer who was not part of the original dialogue that lead to issue resolution. There is a potential for break down at this point due to the lack of depth of understanding.

The collaborative model can contain various participants; much like an “open container” within which the parties, their consulting lawyers (if any) , coaches, and other professionals all contribute to dialogue and create an exchange of ideas. All of the professionals in the collaborative container have access to all efforts to identify and resolve issues in a more open forum, which makes it more difficult for one participant to pursue a "hidden agenda". The collaborative process is the “cutting edge”—designed to make the most out of an admittedly bad situation.

What About Costs?
If you must divorce, what would it be worth to you to have a superior resolution process that is fair and rewarding? Experience shows that collaborative family law cases are substantially less expensive than cases that are taken to court. At the same time, collaborative divorce is almost always more satisfactory and productive for the participants.
Costs will vary depending upon the difficulty of the matter, but one thing is certain: no funds will be spent on waging war. In collaborative family law, parties are assured of getting the assistance they need to succeed, while avoiding costs associated with unproductive fighting. The dollars spent on the collaborative process are a wise investment in a better future for the parties and for their children.