Divorce is not easy under any circumstances. Whatever the process, it is hard work. How your clients navigate the dissolution process can do serious and lasting damage or it can begin the healing that is needed to rebuild a healthy future.
If a couple has never been divorced, but planning to do so, they are probably navigating a maze of advice and information from friends, neighbors, family and veteran divorcees from whom they cannot escape to a place of calm and reason. Endless questions are incessantly whirling through their thoughts and escalating their insecurities.
If they have been divorced before, most of the questions will still obsessively assault, but there is an advantage. They may have already experienced the fatal battle wounds of the litigation process. They already know that they would wish not to expose themselves and their family to the hellish experience that once cost them their dignity and their assets. They sense that there must be a better way.
When guiding clients, there are several restorative processes now available for serious consideration. For purposes of clarity and comparison, the following dissolution options are summarized below.
Neither party has an attorney. Parties represent themselves and must nevertheless meet statutory requirements for filing deadlines and discovery. The discovery requirements are referred to as preliminary and final disclosures which require exchange of completed specific judicial forms and filing notice of such exchange to the court.
The mainstream adversarial approach which prepares from the beginning for the advent of possible trial. Each party has an attorney who will engage in vigorous advocacy in preparation for court intervention. This process often involves extensive discovery, motions, hearings, settlement conferences, legal briefs, pre-trial conferences and trial. Neither party maintains control of the process which is relinquished to attorneys and the court. Where parties are unable to communicate or compromise due to power imbalance, lack of trust, extreme anger, and/or rising resentments, this is often the only alternative. This is traditionally the most time consuming and costly of options.
In arbitration, an outside party called an arbitrator or private judge makes the ultimate decision in the case. The parties appear before the arbitrator with their respective attorneys. Using the services of an arbitrator may save time and the cost of additional paperwork and hearings in preparation for trial. However, once again the parties relinquish control to a third party, the decision is binding and it is not subject to appeal.
Mediation: Neither party is represented by counsel. The mediator will facilitate communication, explain the law, and suggest options, but will not give legal advice to either party. The function of the mediator is strictly as a third party neutral facilitator.
The advantage of this process is that in those cases where the parties are able to be flexible, they take back their power and assume responsibility for the ultimate resolutions and outcomes regarding property distribution, financial matters, custody issues, and their future in general . Where agreements are reached, they tend to be more binding because of the exercise in cooperative mutual participation. Where possible this method has many advantages over other options in terms of time efficiency and cost effectiveness. Nevertheless success requires balance of power, mutual trust, listening skills, flexibility, and honest disclosure. Obviously many cases fail to meet these criteria given that in most instances had the marriage been benefactor of such skills, the chances are they would not be seeking dissolution. Nevertheless there are other reasons for divorce and where the parties possess the skills described, mediation as indicated offers superior advantages.
The disadvantage of mediation is that if an impasse is reached, the mediator cannot, without waiver, represent either party because of inside information to which he/she is now privy, and both must seek legal representation and/or another process.
A comparatively new process quickly growing in popularity, wherein both parties are represented by attorneys who will advocate for his/her respective client but where counsel and parties have contracted never to seek court intervention. Here each party has an advocate to represent his or her respective interest. All participants are committed to collaborating in the best interest of the family unit, especially the children.
There are several variations to collaborative divorce, including the interdisciplinary method wherein a full team of professionals is in place from inception. Where such a team is assembled, it will consist of two collaborative attorneys, two divorce coaches from the mental health profession, a financial planner, and a child specialist where applicable. All professionals are licensed in their field, usually have a minimum of five years experience, and are fully trained in the collaborative process. The goal for all is to achieve a win-win interest based resolution for the principals and their children. The process is founded on the principal that the highest priorities of both parties and the family are supported by all professionals and that court intervention will not be sought by any participant. Other variations of the process include a combination of professionals according to the complexity of the case or the use of one or more ancillary participants on an "as needed basis"
As in mediation, here again is a process that allows for a civil, equitable and thoughtful restructuring of the family in transition. Here is a process that offers psychological and personal assistance from highly experienced professionals in sorting out the complexities of a divorce, while at the same time focusing on issue resolution and family healing.
As in mediation, the couple retains the power to direct their own future course with a powerful and effective way to reach their own decisions and the potential of avoiding the exorbitant cost and unpredictable results of litigation. The caveat is that the process be authentically employed as intended. If the divorcing parties simply shift the location of
their anger and positioning, the value of collaboration in terms of efficiency and expenditure is undermined.
Again, as in mediation, if the process should fail and/or either of the parties decides to resort to the Court, the process will terminate and the parties will need to seek new attorneys and/or a new process.
The devastation so often experienced in the litigation system has produced fertile ground for the seeds of change to grow.
Those individuals already in counseling, or already willing to struggle with personal responsibility and personal growth seem likely beneficiaries of the more cooperative dissolution options now available.
Time and again professionals of like mind questioned the wisdom of the adversarial divorce model and for years sought out and sponsored the alternatives which now provide more gentle paths on which participants may pilot their own destiny and their own healing process.