A Tale of Three Processes
September 9, 2009
By: Barry Armata
Resolving a Divorce by Mediation, Litigation or Collaboration.
John and Mary have been married for 15 years. Both have good jobs (Doctors/teachers/insurance executives/engineers - you fill in the blank.) They have 2 great kids, ages 8 and 13. They have a home with some equity, retirement accounts, a pension, some credit card debt, car loans, and not much in terms of liquid assets. They have started to put away some money for the kids' college education. But as happens in about 50 % of the marriages these days, they find themselves divorcing. Facing that decision, both are worried about their lives ahead. What will things be like for their children? Will they have enough money to survive? What will their relationship with each other be like? What will the divorcing process do to them and will they survive? Facing not only the end of their marriage, but the start of their new lives, John and Mary face an initial decision of what process to resolve their martial issues: Mediation, Litigation or Collaboration.
1. Mediation- If John and Mary go through the process of mediation, they will find themselves working with a neutral professional who will help frame the issues for the couple, help them gather information necessary to generate options that will work for them, and conduct a meaningful discussion of those options. The mediator will guide the dialogue about how they want to end their marriage and divide their assets and debts and how they wish to parent their children. The mediator will guide them toward understanding each other's positions, and will help them articulate what is important to each of them. The mediator will give them legal information that they can use to decide what they want their agreements to look like, such as how child support is calculated, parameters for parenting plans, cash flow analysis, property considerations, and the like. The mediator, if an attorney mediator, will incorporate those agreements reached into a document that can be shared with their individual counsel, if they have one, or ultimately to the court for review. John and Mary have the option of having the mediator accompany them to court to help them through the procedure or they can bring their own counsel, if they choose.
While mediation provides an economical, private and dignified means of resolving marital issues, it can seem unsure. Often mediators work with the couples alone and not their attorneys, leaving John and Mary to report to their attorneys, if they have one, what went on in the mediation room. Since the mediator cannot give either John or Mary legal advice, either one might feel unsure of the agreements being made and will wish to seek the input and support of review counsel. Depending on who their outside review counsel is, they can both support the process and offer helpful, positive suggestions or they can derail the process promising more by the litigation process. Also, when in that room, emotions can sometimes prevent clear dialogue and thinking; problems that possibly led to the breakdown of the marriage can persist such as challenges to communication - truly listening and talking to each other, possible power imbalances that do not allow the parties to effectively negotiate, and other unique family dynamics.
2. Litigation- If John and Mary go through the process of litigation, they will find themselves each hiring their own attorney who will require a retainer to help prepare their case for trial if it cannot be settled through discussion and negotiation. While many litigators work simultaneously on trying to resolve issues, the litigator needs to be prepared in the event resolution cannot be reached and he or she must present evidence to the court to achieve the outcome that their client desires. Litigation allows the attorney to uncover the facts, including financial information, the history of the marriage and the way the couple has been parenting their children. Litigation gives the authority of the court to solidify agreements reached by the parties, to resolve issues if the parties are unable to do so and to hold parties accountable for their actions and behaviors. With this process, John and Mary could find themselves in the unfamiliar territory of a court house and they often will be left out of the negotiation process, leaving it to their attorney to negotiate for them. They will be asked by their attorneys to fill out strange forms to help elicit more information than is needed so as to give their attorneys a road map to the family unique situation. John and Mary, if unable to agree, will be subjected to motion practice wherein their attorneys will write pleadings to the court spelling out for the judge, and anyone who looks at the file, what they are disputing and why. John and Mary will spend much time in court on a schedule they cannot control. They will be part of the crowds that inhabit the courthouse halls and their ability to maintain privacy will be limited.
They may be subject to ambush in that one lawyer may, for a strategic reason, raise an issue for discussion that was not anticipated. The course of their litigation will be strategized so as to obtain a tactical advantage. They will have no control over the legal fees incurred by the attorneys, as the attorneys are subject to the courts time and workings, often waiting for hours on end to access court services or court time. The court will attempt to assist John and Mary to reach agreements by providing people who will help generate resolution options like Family Relations Officers, Special Masters and judges. Sometimes John and Mary will be included in these discussions, but sometimes they will not be. John and Mary will be limited in terms of their resolution in that they are the subject of court rules and laws that may limit their outcome options. John and Mary may at time feel a loss of control, confusion and frustration and will feel somewhat removed from the process of deciding their lives. Their divorce will take on the personality of the attorney that they hire and they will be left to pay the bill, as will their children.
3. Collaboration- If John and Mary choose the process of collaboration, they will find themselves each hiring their own collaborative attorney who will help guide them through the divorce process in a more humane, and is tailored in a way that will emphasize John's and Mary's goals and will seek to maximize their outcomes so that all members of the family are provided for. Collaborative attorneys have received specialized training in mediation, negotiation and breaking through impasse. These attorneys will assist them in helping them effectively communicate with one other, determining what information they truly need to make important decisions, by helping them understand what is truly important to them and why. With collaboration, John and Mary, with the guidance of their attorneys, will set their own agenda and timetables and can schedule discussion when they want and not on the court's timetable. Their attorneys will educate them as to the settlement options available to them, the effects of those options and they will give John and Mary legal advice as to the most effective option for their family. In the collaborative process, John and Mary will find that the process reflects the two of them and their family rather than the personalities of their attorneys. The attorneys will counsel them and coach them as to the best way to achieve their goals.
Emphasis will be placed on the future, especially in terms of the children and the parties' ability to have a good and supportive working relationship around their parenting. The lawyers will guide John and Mary through the court process so that they are respected, and not run over, by it. The lawyers will work together to insure that the divorce is done in an efficient, economical way, not just in terms of resources and fees, but also in terms of John's and Mary's emotions and time. John and Mary are made the decision-makers up front and they are not merely along for the ride. Care will be taken to see that the process is safe and secure for John and Mary, and allows them, with the help of the counsel, to have a meaningful dialogue about how they wish to separate. Emphasis will be placed on meeting their respective goals and interests as well as those of their children. At the end of the process, the judge, when presented with their agreement by their counsel, will compliment them on the work that they have done and the benefit that they gave their children by reaching a settlement. This is the only time John and Mary will have to be inside a courtroom, so that their experience will be one of smoothness and resolution. John and Mary will have kept control of the cost and the outcome and they will have learned a new way to communicate or interact that will serve their family well in the future, and prevent them from returning to court. They will have made the divorce process work for them and they and their children have not been victimized it.
Choosing the process: For John and Mary, the choice of the process is something that they should talk about with their respective attorneys. Not every person or family is right for every process. In cases of mental health issues, domestic violence, insecurity about follow-through or accountability, a client's interest may be best served by the litigation process. Where people need little support and are capable of articulating their views and negotiating with each other and are desirous to contain costs, mediation may be appropriate. For people who need an advocate, yet still want to maintain control of the process, the costs and the outcome, collaboration may be the right process for them. At Brown, Paindiris & Scott we pride ourselves on exploring each option with our clients and helping them to determine which process will serve their interest best.