Collaborative and Mediated Divorce

Not too long ago, an attorney could offer little other than the litigation model for divorce. But the legal profession has joined with other professionals (including psychologists, accountants, social workers and others), to create new alternatives. Many lawyers can now offer their clients pathways to avoid litigation, including "collaborative" and "mediated" divorces. Three of Smith Haughey's attorneys, Veronique Liem, Rob Tubbs and Mike Lewis, are certified in the collaborative divorce process. Veronique also mediates family law matters.

Making the Choice

One of the first tasks of the attorney-client relationship is to determine which road to divorce is best suited to the client's particular situation. The attorney explains the various factors that the client should consider, and makes an assessment and recommendation. But the client ultimately makes the choice. While any divorce can "succeed" no matter which road is chosen, choosing the best road for the client will maximize the chance for a dignified and civil divorce. The right process can promote personal growth and consideration of the children's needs and interests.

A divorcing couple's decision on how they divorce is therefore very important. Collaborative divorce and mediated divorce are designed to promote civility and preserve goodwill. They can lead to years of successful co-parenting, and diminish the chances of a prolonged struggle. While attorney-led negotiation in the midst of litigation can produce positive outcomes, the new models offer options that strongly encourage and facilitate such outcomes.

Collaborative Divorce

In the collaborative approach, before the case is filed, the divorcing parties, their attorneys and other professionals (if desirable) enter into a binding contract not to litigate the divorce. The spouses agree to negotiate constructively to reach a divorce settlement. If the collaborative settlement efforts fail and the case proceeds to litigation, the contract requires all professionals to end their representation. That requirement creates a powerful incentive for the spouses to reach a settlement.

The collaborative spouses and their attorneys hold "four-way" meetings where the spouses disclose their finances, share concerns about the well-being and co-parenting of their children, and explore settlement. They might agree to bring in financial or mental health professionals trained in the collaborative process to provide specialized information and resources. The professionals can be "neutrals" who owe duties to both spouses and the process, or they may provide their services exclusively to one spouse. A neutral child specialist (often a psychologist or social worker) can guide custody and parenting time decisions, and inform parents about their children's needs. A divorce coach would work exclusively with one spouse to envision post-divorce life, cope with the divorce and negotiate constructively. A neutral financial expert (such as a CPA) might provide opinions as to the value of assets, or give tax advice. Use of these professionals can promote civility, co-parenting skills and positive post-divorce communication.

Because the collaborative approach involves the direct participation of attorneys in settlement negotiations and a multi-disciplinary team approach, it is well suited to cases involving complex financial or custody issues, or where spouses have unequal financial expertise or negotiating skills. Collaborative (and out-of-court) divorce is rarely appropriate if either or both parties will not fully disclose assets without court order (the collaborative contract requires full disclosure), negotiate in good faith, respect agreements and consider the legitimate needs of children or the other party. In those instances, the litigation approach may be preferable, as its menu includes court scheduling orders, motion hearings, court-appointed experts, depositions, subpoenas and other discovery tools.

Mediated Divorce

Mediated divorce is similar to collaborative divorce in several important ways. They share the goal of reaching settlement without litigation. They promote civility and empowerment. They favor informed and creative approaches to resolution over judicially imposed resolutions. In both mediated and collaborative divorce, the spouses often postpone filing a complaint for divorce until they have a signed settlement, allowing them to focus their negotiations more on their individual needs, and less on what a judge might decide.

While there are similarities, there are also important differences between mediated and collaborative divorce. In a mediated divorce, the spouses work with a neutral mediator to reach a settlement, often without their attorneys being present. (Attorneys are always actively involved in a collaborative divorce.) If the spouses are in divorce mediation, their attorneys typically provide advice and counsel, rather than direct advocacy, often with the mediator's encouragement. (Attorneys directly negotiate and advocate in a collaborative case, albeit with the goal of reaching "win-win", collaborative resolutions.)

For parties who seek an alternate route to divorce; can choose to resolve issues amicably; and want to avoid litigation and adversarial techniques, collaborative and mediated divorce may be the just the right choice.

Arbitration

A divorce can also be arbitrated, partially or in its entirety. The arbitration order or contract defines who arbitrates and how the arbitration will take place. It also delineates the issues that will be arbitrated. The arbitrator conducts a private hearing before deciding the issues presented to him/her. The final arbitration decision or award is then submitted to the court for approval. Appeal rights are very limited. The arbitrator's decision is typically final.