CHAPTER 7: Mediation and Collaborative Divorce
WHY TRY MEDIATION OR COLLABORATIVE DIVORCE?
The Benefits of Settling Out-of-Court
The overwhelming majority of divorces are eventually settled out of court. Reaching an out-of-court settlement with your spouse has significant benefits:
- It is likely to be faster and cheaper than litigation.
- It is less confrontational than litigation.
- You and your spouse are more likely to abide by a settlement because you both have shaped its terms.
- You are your spouse will probably experience less conflict after your divorce if you reach a settlement, rather than go through a trial.
Faster and cheaper. The court system is clogged because too few judges are available to handle the high volume of cases. It can sometimes take as much as two to four years to bring a case to trial. Long waits to resolve family law cases take an emotional toll on the entire family.
Taking a case to trial is enormously expensive. You’ll need to pay for depositions, experts, exhibits, and your attorney’s time to prepare and try your case. Your spouse will incur similar expenses. Litigation expenses can eat substantially into the income and assets that are better used supporting you and your children.
Greater compliance. People generally find greater satisfaction in making their own decisions and compromises rather than having the decision made for them. Individuals who are actively involved in resolving their divorce issues are far more likely to move on with a positive outlook after divorce and to abide by the terms they have agreed on.
Less conflict. If you have children, even though your marriage might be over, you and your spouse will be connected as parents and grand- parents for the rest of your lives. You will need to establish a civil, if not cordial, relationship with your former spouse. People who have assumed a significant role in the development of their post-divorce world are more invested in achieving successful, non-confrontational outcomes, than those who have had their future imposed on them by a judge. An agreement into which you both have had input is more likely to with- stand the test of time and not generate post-judgment litigation. Once your divorce is final, you do not want to return to court again and again until your children are grown.
Methods of Achieving a Settlement
You may be able to achieve a settlement through direct negotiations with your spouse or by negotiations through your attorneys. Many couples find that they need additional help and turn to mediation as an alternative. Collaborative divorce is another vehicle through which a settlement can be achieved.
Is Mediation or Collaboration Right for Your Divorce?
Mediation or collaborative divorce may be a good option for you if:
- You and your spouse need professional help sorting out the details of your divorce.
- You want to keep your divorce civil and avoid the drama and stress that typically accompanies litigation.
- You don’t want to live with the uncertainty and loss of control by letting a judge decide.
- You want to avoid the expense of court hearings and trials.
- You want to keep the details of your marriage and divorce private.
- You are interested in a creative settlement that a judge might not have the time or authority to impose.
Collaborative divorce may be preferable to mediation if there is a power imbalance in your relationship. The primary goal of mediation is to get the parties to reach an agreement. The less strong-willed of the two can be disadvantaged particularly if the difference is extreme.
Mediation and collaborative divorce might not be appropriate in cases involving domestic violence, abusive behavior, or substance abuse issues.
The Mediator’s Role
Mediation can be a useful tool for sidetracking and resolving even the most deeply entrenched positions, thereby saving you time, emotional effort, and countless thousands in attorney’s fees and costs. Mediation allows you and your spouse to keep control over your future. While you negotiate the issues vital to your future, the mediator guides you to win/win solutions.
A mediator is a person who is trained and certified to assist divorcing couples in reaching an agreement before going to court. Some mediators are attorneys, others are therapists, and some are even CPAs. Mediators do not take either party’s side and are not allowed to give legal advice, even when they are attorneys. They are only responsible for helping the couple reach an agreement and putting that agreement into writing.
Issues that Can Be Mediated
Mediation can be used to address custody issues, support issues, property issues, or all three. Sometimes mediation is required or ordered by the court before the case can go to trial. This is especially true when the issues to be resolved involve the children. Couples can also agree on their own initiative to try mediation.
Goal of Mediation
The goal of mediation is not necessarily to do what a judge would do, or achieve the outcome a judge would decree based upon the law and facts. The goal of mediation is to get you and your spouse to agree on disputed issues. Nevertheless, as you go through mediation, it’s valuable to retain an attorney to advise you about your legal rights and responsibilities. Even though you can offer more or accept less than the law requires, you want to be fully informed when making these decisions.
Choosing your Mediator
There are several generally accepted mediation models. Some are essentially hands off. That is, the mediator is simply there to provide the neutral territory and act as referee. In others, the mediator is highly active in the process and acts as a facilitator, constantly evaluating relative positions, equity, compliance with applicable laws, and seeking avenues of settlement. You want to choose a mediator whose style and methods best mesh with your needs. Your attorney should be able to offer you some suggestions for mediators based on his or her assessment of your case and both of your personalities.
Achieving a settlement may require assistance from experts other than a mediator. You may need asset valuations, pension plan valuations, child support calculations, psychological evaluations, business valuations, counseling, anger management classes, legal advice, financial advice, forms completion, and debt counseling. Naturally, no mediator is qualified to provide all of these services. Some mediators are well-connected in the expert community and can provide referrals for these services, which is another factor to consider in choosing a mediator.
The Mediation Process
Mediation is usually handled over a number of sessions to give the family time to come to terms with their transition. Mediation can be accomplished with or without attorneys present.
The initial session is usually an “Orientation Session.” It is designed to educate you about the mediation process and give you and your spouse a sense of whether you want to work with the particular mediator and whether mediation is likely to be successful in your case.
A typical mediation session lasts for about two hours, although some mediators will prefer shorter or longer sessions. Most divorces will require three or four subsequent sessions over a period of several months.
However, some divorces can be done sooner and some take longer, depending on how well the spouses work together.
Working on a divorce is emotionally hard work. Spreading the sessions out over several months will give you time to assimilate new information, adjust your lives, and face the reality of the divorce. Providing time also allows the grieving process to advance. The further along you both are in resolving your grief over the loss of your marriage, the faster the divorce will progress. For more on grief and how it affects settlement, see Ch. 1.
Most mediation sessions are attended by both spouses and the mediator. Sometimes the mediator will meet privately with one spouse in what’s called a caucus to try to uncover the reasons why negotiations have stalled.
Example: Jake and Joanne were trying to reach agreement on their family home. Both of them wanted it. An examination of their budgets showed that taking the home was not a realistic option for Joanne. She would have a very difficult time keeping up the mortgage payments unless Jake paid her significant monthly alimony, something he refused to do and a court would not likely award. Jake, on the other hand, could afford the home. Joanne adamantly refused to give Jake the home and insisted that, if she couldn’t have it, it must be sold.
The mediator met with her in caucus and began by expressing genuine concern that keeping the home would put her in a position of constant financial distress. The mediator then asked Joanne for the real reason why she wanted it so badly. Joanne confided that after all the effort she had put into remodeling and decorating the home, she simply couldn’t bear the thought of Jake’s new girlfriend living in it. But she also couldn’t bear to tell Jake the truth face-to-face. She was afraid she would break down and she didn’t want him to see her in such a vulnerable state. The mediator asked Joanne if he could convey this information to Jake. Joanne agreed.
The mediator then met with Jake in caucus to explain Joanne’s position. To move the negotiations forward and to keep his future relationship with Joanne civil for the sake of their children, Jake agreed to put the home up for sale and split the proceeds.
Dealing with Parenting Issues
Children and the related issue of child support normally entail high emotions and will often stymie mediation progress if they are not handled first. The very best way to handle children is to remove them from the equation as soon as possible. Children are not assets. Children are not bargaining chips. Threats associated with children are destructive and will significantly hinder the parties’ ability to function as parents in the future. A parenting plan should be developed first. It should be unrelated, except for the child support issue, to the economics of the divorce. Based on the parenting plan, a child support calculation should be performed.
See Ch. 2 for more on parenting plans.
Once the parties have agreed on a parenting plan and the child support calculation is complete, it is best to segregate these issues from the rest of the divorce process. Allowing the parties to return to the topics incorporates them as components in the division of the marital estate. For example, “I’ll let you have the kids one more night per week if you pay off the debt on my car.” Allowing this type of bargaining will reduce your integrity as parents. Dollars and other assets are only things. The emotions related to things, while they do exist, are nothing like the emotional impact of children. Mixing the two will elevate the emotional impact of things to the emotional impact of children. This will virtually guarantee to make a negotiated settlement incredibly difficult or perhaps impossible.
Preparing for Mediation
Before going to mediation, it’s a good idea to have a clear under- standing of your goals. See Ch. 1 for more on goals. You won’t get to where you want to go unless you have some idea as to where it is you wish to end up. Even though you have goals, you will need to keep certain level of flexibility. A hard-line approach without some indication of a willingness to deal on some issues is the surest way to a quick and unsuccessful termination of the mediation process.
Your attorney can help you develop your game plan for mediation and identify any issues that are not negotiable (which should be few).
Your attorney can assist you with strategies for handling your spouse’s or the mediator’s attempts to push you on non-negotiable topics. For example, you could say “I won’t do that, but I will…” and deflect the conversation back to a topic you are willing to give some ground on.
Your lawyer’s job is to assist you in determining which issues are of paramount importance, and therefore, have the least amount of negotiating room available, while identifying points of agreement or points that can be negotiated successfully. The mediator is trained to bounce off non-negotiable issues, and return to and attack them from different points and perspectives. Your lawyer can prepare you to deal with this approach. Once again, successful mediation is most often achieved by parties who are prepared to convince their spouse and the mediator that while there is no room to negotiate on one issue, the door is open to com- promise in another. It is entirely common for folks, when confronted with firm resistance to negotiation on a particular issue, to decide that their position on the issue isn’t worth the defeat of the mediation process. This is not, however, going to happen unless that person feels that compromise is a two-way street.
Advantages of Mediation
Mediation has numerous advantages. They include a decrease in post-divorce conflict, effective (peaceful) communication about the children and their needs, and a process to handle conflicts that arise in the future. Mediation also allows parents to be creative in handling parenting issues. For example, a court may not care (or have the time) to listen to the parents’ ideas on a schedule for the children. The judge may simply allow the father every other weekend and maybe Wednesday evenings. However, in mediation, the parents can agree to change their parenting schedule weekly to accommodate the peculiarities of their jobs.
Matters of mediation do not become public record as they do in a court trial.
Mediation is confidential, so the whole world doesn’t know your private business.
Mediation is cost-effective. Money that would have been spent on depositions, motions, and trial preparation can be saved for your future.
Mediation sessions can be scheduled in a reasonable amount of time and at your convenience. You won’t have to wait months or years for a court date. Even if mediation is only partially successful, it can reduce the number of issues that will actually need to be litigated saving the court and your attorneys time, and you money. In short, mediation presents a useful tool to shortcut the litigation process and invest you and your spouse in your individual future success.
Why Collaborative Divorce Was Developed
The legal system is ill-equipped to deal with the emotional nature of the divorce case. The court system produces a winner and loser and a finality that doesn’t match the reality of divorce. Labeling one spouse in divorce as a “winner” and the other as a “loser” is undesirable and unnecessary and certainly where children are involved, there is no “finality.” The inadequacy of the court system sparked the creation of the collaborative divorce model. Collaborative divorce offers an attractive alternative to couples who hope to achieve the greatest good for everyone in the family, especially their children.
How Collaborative Divorce Works
Collaborative divorce is founded these basic principles: (1) resolution of all issues without a court trial; (2) a mutual, free, and voluntary exchange of information; (3) maintenance of a climate of civility and respect; (4) a fair resolution that achieves the best interests of each family member.
Each spouse hires an attorney to provide him or her with advice and representation, but the parties’ expressed intention is not to litigate, but rather to negotiate a settlement that treats everyone fairly. The spouses and their attorneys get together in a series of negotiating sessions called four-way meetings to work out the issues and arrive at a complete settlement agreement.
The attorneys commit to withdraw from further representation and not take part in litigation should the collaborative process be unsuccessful.
The Collaborative Divorce Participation Agreement
The collaborative process begins when both spouses and their attorneys sign a “Participation Agreement” incorporating promises to abide by the collaborative divorce principles and an agreement that the attorneys will withdraw if the collaborative process fails to produce an agreement. The participation agreement also typically provides that neither party will attempt to take advantage of mistakes by the other or by the attorneys. This provision is intended to eliminate the “gotcha” moments that can occur in court and to make sure that the final agreement is fair and not based on incorrect information or law.
The parties agree not to disclose, or attempt to use in subsequent litigation, anything that is said or done during the collaborative process. This confidentiality provision encourages the parties to speak freely and candidly, and keeps the parties’ personal and financial business out of the courtroom and away from the public eye. See §7:15 below for a sample participation agreement.
Sample Collaborative Divorce Participation Agreement
Below is a typical collaborative divorce participation agreement. It will give you an idea of the provisions that are usually included. The actual agreement you and your lawyers sign may be somewhat different and may be tailored to your particular circumstances.
Collaborative Divorce Participation Agreement
Lawyer for Party I,
Lawyer for Party II,
agree, from this date, forward to conduct the family law matter for which the lawyers have been retained in the process of Collaborative Law as follows:
- Commitment to avoid litigation. We commit ourselves to avoid litigation as in the best interests of the parties, the children, and the family. We commit ourselves to the Collaborative law process and agree to use all alternative dispute resolution methods to resolve the family law matter justly and equitably.
- Conflict resolution by cooperative means. We adopt the Collaborative law method of conflict resolution, which has been fully explained to the parties. This process does not rely on a court imposed resolution, but rather relies on an alternative dispute resolution mechanism. We agree to deal with honesty, cooperation, integrity, and professionalism to work toward the long term future well being of the parties, the children and the family. We will maintain the highest standards of honesty and integrity and shall not take advantage of each other or of the miscalculations or mistakes of the other, but shall identify them and correct them.
- Minimize negative effects of dissolution of marriage. Our goal is to minimize the negative economic, psychological, and emotional consequences of litigation to the parties, the children and the family.
- No court intervention. We agree to settle the case without court intervention. We will ask the court, if the case is filed, to adopt this agreement as our stipulation and memorialize it as a court order.
- Open and full disclosure. We agree to give full, honest, and open disclosure of all relevant personal and financial information, whether requested or not.
- Retention of experts and consultants. If experts are needed, we will consult with them and retain them jointly, unless all parties and lawyers agree otherwise in writing, all of whom shall be given a signed copy of this agreement. We agree to direct all attorneys, accountants, mental health or medical or dental professionals, appraisers and consultants retained by us to work in a cooperative effort to resolve issues without resort to litigation and that they shall give full, honest, and open disclosure of all information, whether requested or not.
- No guarantees. We understand there is no guarantee that the collaborative process will be successful and that we will ultimately succeed in resolving our case without court involvement. We understand that we are still to advocate for our respective interests with the assistance of the lawyers.
- Understandings regarding role of lawyers and disclosures. We understand that although our lawyers are committed to the Collaborative law process, each of them has a professional and ethical duty to represent his or her own client diligently and is not the lawyer for the other party. We understand that each attorney who has entered into this collaborative process pursuant to this Agreement has full ethical responsibilities to his or her individual client regardless of whether he or she is attorney of record in the court case. We understand and agree that the lawyers have ensured that the parties understand the advantages and risks involved with the Collaborative Law Process. For example, we specifically understand that if the process fails, the parties are likely to incur additional expenses and delays because of the need to hire new lawyers who will not have the benefit of the information gathered in the collaborative law process. We understand the requirement for a party to voluntarily make necessary disclosures to the opposing party and this has been clearly explained to the parties. We understand that consent should always be obtained prior to any specific disclosure. We understand that the lawyer must always allow the party to make final decisions, after consultation with the lawyer, as to the objectives of the representation. For example, if a party decides to no longer pursue this process, even against the lawyer’s advice, the lawyer must abide by the party’s decision. We understand that if the lawyer and the party no longer are in agreement to pursue the matter according to the collaborative law process, and a court action has been filed, the lawyer may move to withdraw.
We agree to pay our lawyers for their services as set forth in the fee agreements we each have executed with our respective lawyer. We agree that each lawyer will be paid. The first task is our commitment to ensure parity of payment to each of them. Any agreement we reach contemplates full payment of our lawyers and we agree to make funds available for this purpose.
- Child(ren)’s issues. We agree that amicable resolution of our disputes is in the best interests of our child(ren). We agree to insulate our child(ren) from involvement in our case and in any present or future disputes. We will attend individual counseling to deal with our emotional issues related to the breakdown of our marriage so that we will be in a position to act quickly to mediate and resolve differences related to the child(ren) to promote shared parental responsibility, joint decision making, and a caring, loving, and involved relationship between the child(ren) and both parents.
We will hire any experts in families and children to assist us and join us in any negotiation and mediation sessions to assist us to reach amicable solutions that meet the best interests of the child(ren). However, we agree not to seek a custody evaluation while we are in the collaborative law process.
- Good faith negotiations. We agree that we shall use our best good faith efforts in the collaborative law process. We agree to be reasonable and follow reasoned interests in our negotiations and mediations. Even with full, complete and open disclosure and the assistance of jointly hired experts, as needed, to participate with us in the process, we understand that negotiations will be vigorous and our individual lawyers are independent from the other, each represents only one party in the process, and will advocate and protect his or her client’s interests. Where interests differ, we agree to use our best efforts to compromise to reach amicable resolution of all issues. We agree to use our best efforts to create proposals that meet the fundamental needs of the other party, the child(ren), and the family.
- Withdrawal from the collaborative process. We fully understand the reasons for possible withdrawal of our lawyers from the case as set forth above. We also acknowledge and understand and agree that the lawyers will withdraw as soon as possible upon learning that one of the parties has withheld or misrepresented information or has otherwise, by action or inaction, undermined or taken advantage unfairly of the process or the party or the lawyer. Examples include, but are not limited to, failure to complete agreed tasks and interventions, such as individual counseling, parenting classes, or mandatory disclosure as agreed and in the time frames agreed, as well as dissipation or secretion of marital assets, hiding, selling giving away of marital assets, failing to disclosure assets or liabilities, whether designated as marital or non-marital, failure to participate in good faith and using best efforts, domestic violence, or actions to the detriment of the minor child(ren) or the parties or the family.
- Termination of collaborative law process. We understand and acknowledge that the lawyers’ representation is limited to the collaborative law process and that if this process does not reach amicable resolution, that neither of the lawyers will ever represent either of the parties in court in a proceeding involving the parties. All of the dis- closure, information, notes, memoranda, etc. gathered and compiled shall be considered inadmissible work product of the collaborative law process unless all parties and all lawyers to this process agree otherwise in writing. Each lawyer is prohibited from turning over his or her files to the parties and each is disqualified from representation of the client in any court proceeding, unless all parties and all lawyers to this process agree otherwise in writing. In the event the collaborative law process terminates, all experts, consultants, financial or otherwise may not release their files, all of their work shall be deemed inadmissible as evidence, and they will be disqualified as witnesses, unless all parties and all lawyers to this process agree otherwise in writing. We understand the harshness of the prohibitions and the cost and expense that will be duplicated by the prohibitions and agree specifically to this termination process as in the best interests of the parties, child(ren), and the family, as a further impetus to amicable resolution using the collaborative law process. We agree that any court action taken by any party or any lawyer automatically terminates the collaborative law process.
We hereby agree to all of the terms and conditions herein, enter into this agreement freely and voluntarily, understanding and acknowledging the benefits and detriments of the collaborative law process to which we agree to be bound. We agree to comply with and use our best efforts to amicable resolution using the procedures set forth herein.
The Collaborative Team
The collaborative divorce process is often a team effort. In addition to each spouse’s collaborative attorney, the spouses may decide to call in a financial specialist for advice and help with their property division and support issues, or a child specialist for help with the division of parenting rights and responsibilities, or both. In addition, each spouse may decide to work with his or her own divorce coach, a mental health professional who will help work through the emotional issues.
These experts work as neutral advisers, rather than for one spouse or the other. Their advice should be based on their true analysis and opinion, rather than a financial motivation to deliver advice that serves the purposes of the individual who hired them.
Differences Between Collaborative Divorce and Mediation
Collaborative divorce and mediation are both alternative dispute resolution methods that attempt to eliminate the contentious and expensive process of contested litigation, and allow the divorcing spouses to develop their own solutions. There are differences between the two.
- In mediation, a neutral mediator meets with the parties and attempts to work through all the issues to a satisfactory conclusion. In collaborative divorce, both parties have lawyers and possibly additional specialists to work as a team to reach a settlement.
- Spouses involved in mediation do not have to “fire” their attorneys and switch counsel if the mediation process fails. They will continue to represent their clients through a traditional court divorce. In collaborative divorce, if the negotiations break down, the attorneys will withdraw. The parties will have to hire different lawyers to handle their divorce.
- Mediation sessions often occur with only the spouses and the mediator present. Lawyers advise their clients outside of the mediation sessions. Collaborative lawyers attend all negotiation sessions with the couple and offer advice and propose solutions.
- The goal of mediation is to get the parties to say “yes,” regardless of the fairness or legal accuracy of the agreed-on outcome. The mediator is a facilitator, and cannot and does not give advice to the parties. The goal of the collaborative process is to treat everyone fairly and create an outcome that achieves that goal.
- Mediation does not require a mutual expression of respect and commitment to courtesy, and mediation sessions quite often involve a bit of “spleen venting,” before achieving a successful result.