Divorce: A Survival Guide by Dianne R. Ophelia
X. Alternatives To Litigation
- What About Mediation?
- What Is Collaborative Law?
- The Best Of Both Worlds
1. What About Mediation?
Mediation is a process in which a neutral person, known as a mediator, attempts to assist
the parties in reaching an agree¬ment. The idea sounds good; however, it is difficult to
use in divorce cases.
Generally, it is the spouse who is more educated or who held the “power position” in the
marriage that obtains a better outcome with mediation. Sometimes a spouse is experiencing
guilt as a result of the termination of the marriage, so the other spouse uses that guilt
to his or her advantage in the settlement.
In addition to the “quality of bargaining power” issue, one or both parties are many times
too emotional to negotiate with a level head.
Although a good mediator can sometimes help to equalize the playing field, technically, he
or she is to remain neutral, so generally is of little help in balancing the power. More
often than not, parties spend valuable time and money attempting mediation, which fails in
the end. The parties then spend more money retaining their own counsel to resolve the case.
2. What Is Collaborative Law?
A new approach to divorce resolution is that of Collaborative Law. This is a plan under which
you and your spouse have separate attorneys. You agree to full disclosure and cooperation in
attempting to resolve your case and meet as many times as necessary to obtain a resolution
outside the courtroom.
The downside of this alternative is that if either of you decides not to settle, you both have
to fire your attorneys and hire new ones. The idea behind the theory is that you will settle
because you will not want to go through the time and expense of hiring new counsel.
Personally, I do not believe this is a good reason to settle a case. Why would you hire a
good attorney if that attorney cannot represent you should the other side be unreasonable?
The drafters of Collaborative Law had a good idea, but they took it too far.
3. The Best Of Both Worlds
Ask your attorney if he or she and the opposing counsel will follow the “spirit” of
Collaborative Law without the requirement that you must fire him or her if an agreement
is not obtained.
In my experience, almost every case can settle out of court if both of the clients direct
their attorneys to work toward a resolution of the case and are willing to be reasonable
and compromise.
Good attorneys should be able to give you all of the benefits of Collaborative Law and
Mediation by working together toward a fair resolution of the case.
It is important to convey your intentions regarding settlement to your attorneys. Attorneys
tend to assume that you want to go after everything you can get and more, which often results
in prolonged and expensive litigation. If you do not want this to happen, tell your attorney
that you want a fair settlement but also want to know what compromises you have to make along
the way to end the case more quickly. The compromise may be worth it to you. Your attorney will
not know your desire to compromise in order to obtain a resolution without litigation unless you
communicate with him or her.