Getting Divorced? You Have Options
A Closer Look at Litigation, Mediation, and Collaborative Law
Couples often find the preliminary stages of the divorce process overwhelming because of the many issues they need
to consider. Amongst these important topics are support, asset division, and children. Reaching agreement on these
issues is almost never easy, and couples are often besieged with advice from well meaning friends and family, and
articles such as this. The reason why this process can be so bewildering is because each situation requires a unique
solution. Save the simplest cases, there are no standard resolutions. Thus, the guidelines of family law are
intentionally flexible and lacking in clear guidance and rules. In light of this, couples must first understand their
choices when getting a divorce. These include litigation, mediation, and collaborative law. Each approach has its
advantages and its advocates. It is up to each couple to try to figure out what process suits them best, rather than focusing on specific solutions.
The traditional and most widely practiced process for dealing with divorce is litigation. Each individual hires his or
her own attorney who files the case in court and obtains court orders regarding custody, support and property
division. Most attorneys practicing family law will make an initial effort to amicably resolve the case, but if
settlement is not reached quickly, the conventional approach is to seek court involvement. There is a wide variance
in style among family lawyers, and clients retaining counsel should have extended conversations with their lawyers
about their philosophy, experience and customary practices. For example, there are attorneys who will not negotiate
until temporary court orders are obtained from a court or until a case is prepared for trial. These lawyers view any
interest in early negotiation as a sign of weakness to be exploited by the other side. While there are cases in which
this approach is the only appropriate one, for most people this method should be a last resort when other less
aggressive approaches have been tried and failed. Since aggressive litigation is the most costly process and the one
most likely to create emotional and financial pain, clients must be careful who they hire to represent them and
should be careful to maintain control of their attorney. At the end of the case, the lawyer moves on to the next case.
The clients must deal with the wreckage left behind.
Mediation is the most well known alternative to litigation. Mediation encourages clients to hire a neutral, divorce
mediator, usually an attorney or a family therapist, to meet with them. A mediator will conduct as many sessions as
necessary to help clients reach agreement on their issues, without resorting to a courtroom. A mediator does not play
the role of arbitrator or decision-maker; rather he or she facilitates resolution. Mediation can be faster and far less
costly because couples only have to hire one individual to resolve their issues. Mediation is most likely to be the
process that enables parties to preserve relationships and avoid the acrimony that can create years of hard feeling
and damage children. Most mediators encourage clients to consult with experienced family lawyers as coaches
during the process so that they are fully informed as they make commitments.
A relatively new approach to divorce is collaborative law. Its popularity is growing across the country as both
lawyers and clients are finding it useful in certain cases. In a collaborative law case, each client selects an attorney
who makes a commitment not to go to court to resolve the case. Each lawyer actually agrees in writing that he or she
will withdraw from the case if it goes to court as a contested matter. This feature of collaborative law was developed
to meet the perceived problem of lawyers churning cases for their own benefit. By agreeing in advance not to take
the case if it goes to court, all questions about the attorney's motivation are resolved. In the collaborative law
process, both parties hire the same appraisers, the same pension actuaries and thereby reduce gamesmanship and
cost. Experienced collaborative lawyers report that by eliminating the threat of 'I'll see you in court,' the process of
resolving differences can proceed in an orderly, creative and non destructive way. Although slightly more expensive
than mediation, collaborative law permits the parties to have meaningful involvement of attorneys who can help
with technical and creative solutions, without running the risk that the situation will degenerate into a war. Many
clients find that mediation without the active participation of personal attorneys, is a little threatening, especially in a
situation where one of the parties has superior knowledge or negotiating skills.
No matter which one of these three legal options couples choose, they have to be concerned with their own personal
well-being and that of their families. Nobody likes the idea of divorce, but there is no reason why marriage has to
become an expensive courtroom drama.
ABOUT THE AUTHOR
Howard Goldstein is trained mediator and a partner with the law firm of Rosenberg, Freeman & Goldstein.
He has been providing representation in family law and divorce since 1973 and is on the Board of Directors of the
Massachusetts Council on Family Mediation and Board of Directors of the Massachusetts Collaborative Law Council.
He can be contacted by phone at (617)964-7000 or or Visit Web Site
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