By: Mimi L. Magyar
Lerch, Early & Brewer's Legal Update
Since the downturn in the economy,family law attorneys are seeing clients making decisions that are more cost-driven than emotion driven. Formerly, it was not unusual to consult with a client whose emotion seemed to be driving the decision–making process when it came to the dissolution of the family. Clients increasingly are looking for alternatives to costly litigation and a “take no prisoners” approach. They are opting more frequently for various methods of alternative dispute resolution that do not involve the courts. Two such options are mediation and the collaborative process.
Mediation involves the parties working together with a neutral mediator to address issues specific to their family without resorting to litigation. The desired outcome, derived through a process of negotiation and compromise, is a settlement where each party has achieved his or her primary goals. The mediator facilitates a dialogue and may suggest solutions for consideration by the parties. It is preferable to have each party meet with a lawyer in preparation for mediation. The lawyers then participate in the mediation. The mediator works with the participants to draft a document that encompasses the agreements in a form acceptable to the courts.
The role of the attorney in mediation is to champion the position of his or her client. If the parties are unable to reach a resolution, the attorney may continue to represent that client in any contested litigation that may follow.
Benefits of Mediation
Mediation has many benefits. Mediation:
- Can be completed after a limited number of sessions and in a relatively short period of time.
- Usually saves money compared with the cost of contested litigation.
- Allows each party’s attorney to protect his or her client’s position.
- Provides the privacy afforded by the attorneyclient privilege.
Drawbacks of Mediation
There are, however, some drawbacks to mediation. The process:
- Typically does not teach a couple to communicate more effectively, because by definition the process involves position-based advocacy.
- Still offers the alternative of court intervention if the mediation stalls, which may discourage clients from meaningfully participating in the mediation process and encourage parties to treat each other as opponents.
- May be counter-productive or intimidating to one of the clients if there are addiction issues or allegations of abuse.
The Collaborative Process
The collaborative process involves the couple working together (sometimes with a team) to address issues specific to their family. In this model, the team consists of an attorney and a divorce coach (typically a therapist) for each client and then additional neutral third parties, as necessary, such as a child specialist and a financial advisor. In this model, the couple works together, with the help of the team, to find their own solutions. Each individual meets independently with his or her coach and attorney, as well as with the entire team. This type of process requires frequent meetings and a commitment to work together. This model is the converse of positionbased advocacy and references to the “parties” and each client’s “position” are discouraged.
If the team reaches a resolution during the sessions, an attorney will draft a document which reflects the agreements reached by the couple. If the process breaks down and an agreement cannot be reached, the couple will be forced to find new counsel to represent them moving forward.
Benefits of the Collaborative Process
The benefits of the collaborative process are abundant. In the process:
- Parents work together with the team to brainstorm and ultimately evaluate options that will serve the best interests of the children.
- Financial issues also are handled in this fashion and require the couple to actively engage each other in a respectful manner.
- Costs are expected to be far below that of contested litigation in complex cases, although there are typically many more meetings than in a mediation model.
- The couple is much less likely to walk away from the process prematurely because the attorneys cannot continue their representation of the clients if the process breaks down.
Drawbacks of the Collaborative Process
As with mediation, there are some drawbacks with the collaborative process. It:
- Is not appropriate when there are addiction issues or allegations of abuse.
- Depends on full disclosure by everyone on the team. If one person is not forthcoming, information probably will remain undiscovered.
- Has costs that may not be incurred in other models, such as the coaches or the child specialist, who, although therapists, are not covered by insurance.
- Is typically a longer process than mediation, although shorter than extensive litigation. Therefore, if one member of the couple wants to move more swiftly toward the ultimate resolution than the other, this process may seem frustrating.
- Can be much more expensive than mediation.
- Has a significant cost associated with transitioning the case from one attorney to another if the process breaks down.
There is no one model which suits all needs and sometimes litigation is necessary. However, the best approach for a client is to speak with his or her lawyer about all of the options available prior to choosing a course of action. When armed with this information, clients can perform the necessary cost benefit analysis and set realistic goals.
Mimi Magyar helps people successfully navigate issues around marriage, adoption, divorce and custody arrangements. For more information about alternatives to litigation, contact her at firstname.lastname@example.org or 301-347-1260.