Alternative Dispute Resolution (ADR) in Divorce
(Adapted from A Presentation to Lilac Tree Attendees on the Nuts and Bolts of Finances in Divorce)
In the litigation process, there is a focus on winning and losing. However, in the Mediation Process and the Collaborative Law Process, the focus is on the needs and interests of both parties.
Mediation: Divorce mediators can be attorneys, financial planners, accountants, or mental health professionals. The mediation process typically makes use of one mediator. However, there can be a dual mediation process where 2 mediators are used, a mental health professional and an attorney. More frequently, couples are resolving their financial issues in the divorce process by using mediators who are also financial planners or accountants with specialization in divorce financial issues.
The mediator (whether there are one or two of them) is always an impartial neutral. It is not the mediator’s role to give legal advice, to make recommendations, or to draft legal documents. The mediator will collect financial information from both parties and work with each spouse separately and together to come up with an agreed upon solution to each financial element: maintenance, child support, property division and division of debts. The mediator will meet with each spouse separately, or together, or will do a combination of the two. Once there is agreement, the mediator then will prepare an outline agreement or ‘Memorandum of Understanding.’ It will then be the role of a divorce attorney to draft a settlement agreement and the other documents that are necessary to finalize the divorce.
Collaborative Law Process. The Collaborative Law Process has as its main focus the needs and interests of the children. Just like the mediation process, it’s not about winning and losing. Collaborative professionals believe that if you focus on winning and losing, the losers end up being the children. Collaborative attorneys are specially trained; they have mediation training and training in the collaborative law process. Although each attorney remains an advocate for his or her client, the Collaborative Law Process is a ‘team approach’ to problem solving. We use financial neutrals, child specialists, divorce coaches, and collaborative trained attorneys.
At the beginning of the case, the parties and the professionals sign a ‘Collaborative Participation Agreement.’ This agreement commits everyone to negotiate and work together in good faith, and, most importantly, binds the attorneys not to go to Court. The most important goal is to keep the parties out of the court system and to keep them focused on the needs and interests of the children and each party.
There are some real advantages to the Collaborative Process. We still have complete disclosure of all financial information. But because the attorneys are not running in and out of court, the costs for the divorce are typically lower. There is also privacy in this process that you can’t have in the litigation process because in litigation the Court becomes a stage for the world to see your private business. What the Collaborative Process takes into account more than any other process is the acknowledgement that when you get divorced, there is more than just the legal divorce to take into consideration. There is:
- The physical divorce: moving into separate households
- The financial divorce
- The emotional divorce, and
- The legal divorce. In the Collaborative Law Process we only go to court at the end of the process to present the settlement agreement to the Court for its approval and get the final ‘judgment for dissolution of marriage’ entered by the Judge.
Each of these, the physical divorce, the financial divorce, the emotional divorce, and the legal divorce are intertwined. So, even though we are talking about the finances of divorce, you must remember that finance and numbers in divorce are highly charged emotional areas. Take for example the family home: you want to stay in the home, because it is where you have lived, what you have decorated to make your own, and it represents security for you and perhaps also for your children. But it may not make financial sense for you to stay in the home. So, how are you going to process these emotions and the feelings of rage you have against your spouse for ‘breaking up the home’ and taking away your sense of security? Until you acknowledge the emotional components of the finances, and resolve them, it will be difficult to reach a reasonable resolution. Once you remove the emotional components connected with the finances, you are left with making business decisions.
Creative Solutions from the Collaborative Law Process: The law is not the only element that is considered in the Collaborative Law Process. We Collaborative Law Professionals all pride ourselves in thinking outside the box, in looking at common sense approaches, simple solutions, and reasonable outcomes. Remember, there are no winners and losers in the Collaborative Law Process.