In the previous blog, we explored the concepts of clients’ needs and desired outcomes if the decision to divorce is reached. Now we will turn to the four most commonly used process choices for proceeding with a divorce.**
One very common way that people get help negotiating through their divorce is through retaining lawyers who engage in “traditional representation”. The phrase, “traditional representation” when used in this context, simply means a situation in which attorneys have reserved the right to go to court in an adversarial proceeding. Cases handled in this manner can get resolved in a wide variety of ways; from cases that get settled before divorce papers are even filed with the court to cases that get resolved “on the courthouse” steps, just before a trial date.
While very few of these cases involve trials, it is common to engage the court in some portions of the settlement process, either for settlement conferences or motions for temporarily relief. Because this process can involve some court, it is sometimes referred to as “negotiating in the shadow of the courthouse”. The advantage of this process is that, if one or both parties will not cooperate without some threat of judicial intervention, the parties, through their attorneys, can more readily access the power of the court. The disadvantage is that, when the parties feel stuck, there can be a tendency to drift to court, or to threats of court, in a way that causes a lack of control and a disincentive to engage in more creative solutions and teaming.
In mediation, the parties hire a neutral person (or persons) to assist them in reaching agreements. The mediations are confidential and if successful, result in a mediation memorandum, which gets converted to a final divorce agreement, generally with the help of attorneys. The mediators cannot give legal advice, (even if the mediator is an attorney), so the parties often hire attorneys to advise them, either during the mediation sessions, or in between sessions. The style of mediation can vary from the most transformative or facilitative mediations designed to allow the clients to create their own solutions through “interest based bargaining” to more evaluative mediations where the mediator provides their opinion on how a court would resolve the issues.
Mediations also vary significantly in the amount of lawyer involvement; from cases in which clients proceed through mediation with little or no representation to cases in which the attorneys are present with the clients, and actively engaged during each mediation session. One of the advantages of mediation is that it can help client reach a more amicable resolution without the expense, (or potential agitation), of having more direct involvement by the attorneys. Of the potential disadvantages of some mediations is that clients, in the absence of direct legal counsel, may not get the protection and safety that they need to make the best long term decisions.
Collaborative Divorce combines some of the elements of mediation and some of the element of traditional negotiation in an effort to give the clients a blend of amicability and protection. The defining feature of Collaborative Divorce is that the lawyers are involved for settlement purposes only. The advantage of having the lawyers focused on settlement, is that it creates opportunities for more creative and durable solutions. One of the key elements of Collaborative Divorce is that the parties generally get the benefit of a Collaborative Team, rather than relying solely on attorneys. Having mental health professionals focus on the parenting and communication issues and engaging financial neutrals to mediate the financial issues, give the clients the opportunity to achieve more cost- effective representation and more holistic solutions
In addition, while the role of the attorneys (and therefore the expense) is reduced, the role of the lawyers is enhanced by the fact that both lawyers will be using similar advocacy skills. This reduces the “fight fire with fire” mentality that sometimes tempts clients to unwitting hire aggressive attorneys. A potential disadvantage is that, if the matter is not resolved out of court, the parties will need to switch to traditional attorneys to finish the case. (The need to switch attorneys happens in approximately 5-10% of cases). The fact that attorneys are focused on settlement only is the most unusual aspect of the Collaborative Process and the element that has led to its worldwide growth. Not surprisingly, attorneys who have only done traditional negotiation prefer the traditional method and attorneys who have only done the Collaborative, prefer the Collaborative method. What is surprising is that almost all attorneys who have significant training and experience in both methods describe the Collaborative method as getting better outcomes for most clients.
Occasionally clients will ask about simply using one attorney. While this is not technically a process option, it comes up often enough to warrant some discussion. While a divorce may proceed with just one attorney, that attorney can only represent one of the parties. It is unethical for any attorney to represent both parties in a divorce. Therefore, in these situations, the attorney must represent one spouse and the other spouse must sign a Waiver of Counsel stating that he or she is waiving their right to have representation. This may sometimes be appropriate in very simple cases where there is very little that is being negotiated. However, in most cases it is best to have both parties have representation even if one attorney is only involved for one or two hours to make sure the client fully understands all of the implications of the agreement.
Because all these choices can be overwhelming, we have developed another option in which couples can get independent comprehensive advice about all of their options before they proceed. This DivorceAdvisor option allows the couple the opportunity to fully define their goals and concerns and to get all the information necessary to choose the process and the professionals who can best help them meet their goals. To learn more about DivorceAdvisor, go to http://www.ousky.com/services/divorceadvisor.
While most clients rely primarily on attorneys or mediator to help them choose a divorce process, many clients will ask their therapist to explain these options as well. It is in the best interests of all clients to have their therapists maintain some understanding of the process choices and, where possible, for the client and therapist to work together to help the client make the best choice for their family.
In our next segment, we will go beyond the choices made prior to the commencement of the divorce and move on to ways that professionals can team during the divorce process.
Next: Teaming During the Divorce Process: Empowerment Issue
**Bias Alert: These very rudimentary explanations are intended to provide only a very basic understanding of the primary process choices. For more information, most therapists will refer the clients to attorneys or materials for a more complete explanation of the options. In doing so, it is important to be aware of bias that all attorneys, including the one who is writing this blog, have biases toward one process or the other. In order to guard the clients against these types of attorney biases, it is important to make sure that clients get an adequate explanation of all process choices from a professional that has experience in the method they are describing. Too often clients will hear negative things about one process from professionals who have very limited (or no) experience or training in the process they are describing.