THIS ISN'T YOUR MOTHER'S DIVORCE; YOU HAVE OPTIONS
Used to be that once people decided to divorce, both spouses retained attorneys and it was "let the battle begin." Documents and letters began flying, courtroom appearances were scheduled and life remained in limbo for the family until a stranger decided their future.
Today the practice of Family Law has evolved. People have choices and they are becoming increasingly insistent that their families be spared the heartache and stress of a contentious divorce. Today you have the option of using Mediation, Collaborative Practice or the traditional adversarial legal system.
1. Mediation—Husband and wife meet with a neutral mediator who assists them in thinking through and working out all of the issues surrounding divorce. Typically, two-hour sessions are held until agreement is reached on each issue. The mediator then puts the Agreement in writing and each party reviews it with his or her own individual attorney. Then they meet for a final short session to sign the Agreement. (See, What is Divorce Mediation? for a more detailed explanation.)
The hallmarks of Mediation are:
- Both spouses agree to use mediation because they desire to divorce with dignity and respect;
- Both spouses feel capable of negotiating directly with each other, with assistance as provided by the mediator; and
- The mediator is neutral and does not make decisions, you do.
2. Collaborative Practice—If you or your spouse feel uncomfortable directly negotiating with one another in mediation, or if mediation is inappropriate for other reasons, you do not have to resign yourself to the adversarial process. Rather, you can opt for Collaborative Practice which simply means you both retain Collaborative Practitioner for the purpose of negotiating an agreement.
Collaborative Practice recognizes that only 2% of cases go to trial, yet most cases are "worked-up" as if trial is a certainty. This approach is tremendously inefficient and often results in intensifying the conflict instead of resolving it. However, when both attorneys are retained for the purpose of generating a mutually-agreeable settlement, instead of preparing for trial, the result is a more comprehensive and satisfying settlement than what is achieved through the adversarial process. Collaborative Practice also avoids the stress and expense of protracted litigation.
Typically, Collaborative Practice involves a number of meetings with both parties and both attorneys present. Discussions continue until each issue is satisfactorily addressed. A particularly helpful aspect of Collaborative Practice is the use of neutral professionals as needed. For example, if parents are struggling to know which parenting plan would truly be best for their children, both parents can consult with a neutral child specialist. Or if the parties own a business, a neutral evaluator can be employed to fairly and objectively value the business. Sometimes individual divorce coaches can be helpful when communication patterns are impeding progress. No one takes Divorce 101 in college and this is one of life's most challenging transitions. A little help along the way from a collaboratively trained professional can reap years of rewards for the entire family.
The hallmarks of Collaborative Practice are:
- Both parties retain attorneys trained in Collaborative Practice, for the specific task of negotiating agreement;
- If agreement is not achieved, and a trial becomes necessary, the Collaborative Practice Attorneys must withdraw and adversarial attorneys are then hired to prepare for trial;
- Both attorneys are invested in creative problem-solving instead of intensifying conflict in order to "win"; and
- Other neutral professionals are consulted as needed to ensure the most optimal family transition possible.
3. Traditional Adversarial Legal Process—Unless both parties choose another process, they will default to the adversarial system. Here both parties retain lawyers to advocate for each client's maximum, individual advantage. Unfortunately, this may be pursued at the expense of the restructured family's best interest as a whole. The outcome is frequently two embittered parents who are unable to cooperate during years of post-divorce co-parenting.
The case will be "worked up" for trial which means discovery requests will be issued, depositions may be taken, and family members and friends subpoenaed to testify. Settlement discussions are usually entertained throughout the adversarial process but always with the threat of trial looming in the background. It is very typical for settlement to be achieved "on the courthouse steps" the morning of trial. Unfortunately all of the trial preparation costs have already been incurred at that juncture.
If your case is one of the 2% that actually go to trial, it is rare that one day is sufficient. Thus, at the end of the first day of trial, the second day is scheduled, typically 3-5 weeks later. Often a third day is necessary as well-or more.
At the end of the trial, the judge may issue a decision or may delay a decision for a few days or weeks. There's a saying among divorce lawyers that "the judge's custody ruling is the opening bell for the real fight." This reflects the fact that people rarely simply accept the decision and move on to implement it to the letter. Rather, because it's likely neither parent got everything he or she wanted, each actively seeks to circumvent the judge's decision to one degree or another. A fair amount of a family lawyer's work involves post-judgment conflicts and hearings. Unfortunately, this means parents did not find a basis on which to cooperatively co-parent during their divorce process and children continue to be subjected to their parents' conflict—sometimes for years. Most people say they divorced to end conflict, not merely to perpetuate it from two different homes. This unfortunate result is particularly disturbing to many parents.
The hallmarks of the adversarial legal process are:
- Each party retains an attorney to advocate for his or her desired outcome. (While it may be initially appealing to have someone "fighting" for you, by definition you have chosen to fight);
- Control over the progression of your case is largely dictated by the attorneys and the court; and
- If settlement is not achieved on the morning of trial or earlier, a judge will decide your future.
How to choose the best process for your family's future?
Unless there are specific reasons Mediation is inappropriate (e.g. current domestic violence, active substance abuse, etc.), there is rarely anything to be lost by first attempting to reach resolution through Mediation. This is the process which gives you the most control over decisions affecting your life. It is also the process that affords you the time and opportunity to explore many potential options so that you can meet each family member's needs as much as possible. Finally, it is usually less expensive.
If Mediation is not an option, Collaborative Practice keeps the focus on creatively developing a settlement but with more attorney involvement than is usually the case with Mediation. However, because you have both directed your attorneys to negotiate agreements, you avoid much of the downside of the adversarial system. In Collaborative Practice it works to your advantage that your attorneys "lose their jobs" if a settlement is not achieved—everyone therefore works harder at crafting an acceptable settlement.
If neither Mediation nor Collaborative Practice are options (both require that each spouse agrees to use the process) then you have no option but to utilize the adversarial process. Skilled and experienced attorneys may be able to negotiate a settlement earlier if they actively seek opportunities to do so rather than simply focusing on trial-a likely non-event.
The following table may assist you in evaluating these options. Deborah would be happy to talk with you about which option is best for your situation. Kathy or Chris can schedule an initial consultation for you at 269.428.3447 at either the St Joseph or Grand Rapids office.
