How Collaborative Divorce Can Help You Split With Less Drama

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How Collaborative Divorce Can Help You Split With Less Drama

Divorce involves each spouse engaging an attorney to litigate disputes in the course of a pending marriage dissolution proceeding.

Those attorneys attempt to negotiate a settlement of the issues involved in the divorce. This includes custody, spousal support (alimony), child support, division of marital property and debt, insurance, and other related topics.

Negotiating through attorneys can be protracted, time-consuming, and expensive. Each communication between the attorney and the client, and then between the attorneys in the negotiation process may take days or even weeks.

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The tone of communication with an attorney is kept civil and professional. 

The tone of communication between attorneys often takes on the personality of the attorneys, not those of the clients, and often involves “posturing.”

Thus, typically the wording of letters and phone calls becomes that of the attorney instead of the spouse, eliciting a very different response from the other spouse than might have occurred had there been direct communication between the spouses.

While an attorney-negotiated settlement certainly is much less costly than litigating, there are other options.

What is divorce mediation?

"Alternative dispute resolution" is the name given to various means of resolving disputes other than traditional divorce litigation, such as mediation and the collaborative divorce process.

Mediation involves the spouses retaining a neutral mediator as a facilitator of settlement negotiations.

The spouses meet together with the mediator, often on a weekly or bi-weekly basis and negotiate directly with one another. The mediator keeps them on track and makes sure they address all necessary issues.

If at the conclusion of the mediation process both parties have reached an agreement, the mediator drafts an agreement that memorializes the settlement terms. The spouses will then present that agreement to their attorneys.

Although many mediators are attorneys with family law experience, the mediator does not represent either spouse and should not give legal advice to either or both of the spouses. Many mediators recommend that each spouse first consults with an attorney first.

Mediation gives more flexibility.

In mediation, the spouses are not bound by the law and are free to fashion their own settlement terms without regard to what a judge would be compelled to do since they're not limited by the law.

Thus, mediation gives the spouses more latitude than they would have in court and, more importantly, control over what settlement terms their agreement will contain.

While mediation is fine for some couples, it isn't beneficial for everyone.

There may be an imbalance of negotiating power between the parties or a psychological dynamic of intimidation. One party may be much more financially savvy or knowledgeable about the family finances than the other.

There are myriad other reasons, and the result can be a “lopsided” settlement.

What you both want is what matters most. 

It's important to remember that it's not the mediator’s job to help either spouse, but rather to listen, keep the negotiations moving forward, facilitate discussions, and make sure all bases are covered in the spouses’ direct negotiations.

It's not the mediator’s job to force the parties to settle on terms the mediator feels are fair. Only what the parties determine is fair to them is what matters.

If mediation is not a viable option, collaborative divorce is an option.

The collaborative divorce process has many of the attributes of mediation. It involves the parties negotiating directly with one another in private sessions.

The goal is achieving a settlement on terms both parties themselves have fashioned and feel are fair. However, in the collaborative process, a mediator is rarely utilized.

Rather, both attorneys attend all negotiating sessions (called four-way meetings) to counsel their respective clients and assure the client is aware of the legal and practical effect of what's being discussed.

This is also to try to prevent the client from sabotaging or undermining an emotionally-charged divorce negotiation.

The presence of attorneys can help to prevent one spouse from overpowering or taking advantage of the other spouse.

The attorneys also help assure that the necessary exchange of financial documentation takes place, so that any settlement achieved is based on a sound financial foundation rather than merely based on the “trust me” principle.

The attorneys in the collaborative divorce process also take on a different role than they would in litigation or in traditional negotiation.

While each attorney still represents one client, they're trained to collaborate in the process, to look for solutions the spouses may not see, and to offer as many options as they can come up with. This aspect is one of the most unique concepts of the collaborative divorce process.

It's extremely important to understand that attorneys in the collaborative divorce process are at all times focused on settlement, not litigation.

In fact, in the collaborative divorce process the spouses and attorneys all sign a participation agreement which states, among other things, that if the process is aborted by either party, neither attorney can represent their former client in the court process.

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Litigation is merely another dispute-resolution model.

Each side fights for their client with the impossible goal of “winning.” While that model may work for many types of cases, it's inappropriate for family disputes where the parties will have an ongoing relationship in the future.

Litigation is inefficient and wastes valuable financial resources.

Although a high percentage of divorce cases ultimately settle, settling in litigation with the attorneys fighting each other and proceeding through the cumbersome and inefficient court process not only wastes money, it also produces a lesser-quality agreement that may not meet the parties’ and their children’s individual needs.

In litigation, financial experts sometimes are brought into the case, especially where one or both spouses own or have an interest in a business or professional practice or where there may be cash income. Additionally, sometimes a child custody expert is brought in, though this isn't typical.

By contrast, in collaborative divorce cases, the parties can engage a neutral financial professional to help them develop accurate budgets for their future support needs, to value interests in businesses or professional practices, and to clarify the true income which such businesses or professional practices provide to the business owner or professional.

Divorce coaches and mental-health professionals. 

Another wonderful tool in the collaborative process is the use of a divorce coach or a mental-health expert. These professionals meet with the parties without the attorneys.

They also may attend the settlement negotiation sessions. A divorce coach can work wonders in the process.

As anyone who has gone through a divorce knows quite well, separation and divorce, and the negotiations that ensue during the separation, are highly charged emotional events.

A divorce coach can work to get you to overcome some of the emotional reactions to hot-button comments and issues.  They also help spouses learn to communicate on a more rational and mutually beneficial level.

The spouses also may learn better communication skills they carry into the future. Then, they can discuss and resolve issues that come up from time to time without the need to return to attorneys to work out such disputes.

You may wonder whether having a divorce coach and financial expert increases the cost, and the answer is yes. However, the benefit of having such neutral experts at the table results in a better, fairer settlement focusing on you and your children’s best interests.

In the end, this process can actually save money, as it's likely to move along more quickly.

What do mediation and the collaborative divorce process have in common?

  • You and your spouse control the outcome.
  • You and your spouse speak directly to one another, not through attorneys,
  • You work on communication skills, making it more likely that you’ll be able to work out future differences without having to return to attorneys or court.
  • The cost is less than litigation or even a negotiated settlement that comes out of the litigation process.
  • Resolution is quicker than in the court process.
  • You and your spouse establish the pace of the process and the dates of the meetings.
  • Meetings take place in attorney offices, not at the courthouse.
  • Both are confidential.

How do mediation and the collaborative divorce process differ?

  • In a collaborative divorce, your attorney is by your side throughout the process.
  • You can utilize a divorce coach who is trained and experienced in dealing with emotional hurdles, which often interfere with settlement.
  • You can have a custody expert in the form of the divorce coach or another mental-health professional to help assure that your agreement is in your children’s best interests, something that is rarely done in mediation.
  • The quality of the ultimate agreement is likely to be better, as there are two attorneys collaborating in the process, not fighting each other, even though your attorney represents you and the other attorney represents your spouse.

The collaborative divorce process can be a wonderful means of resolving divorce disputes without giving up the right to have a lawyer involved in each step of the process.

It also affords you the opportunity of benefiting from the education, training, and experience of financial and mental health experts as you negotiate a final settlement with your spouse.

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Gary Borger is a senior partner with Borger Jones Matez & Keeley-Cain, P.A., concentrating in the resolution of family law disputes. For more information on collaborative divorce, Gary Borger can be reached via email, or you can learn more at his website.

This article was originally published at NJ Family Law. Reprinted with permission from the author.