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April 2011 - Some Benefits of Mediation and Collaborative Law

by Judy Williams and John Denny

In these unsettling economic times, everyone is looking for ways to cut costs. Parties contemplating divorce are no exception. Today, many such people are searching for the most economical way to complete that task. As attorneys (in any field), we have a duty to understand and share complete information about the choices available to complete a divorce. This article will discuss the three main choices available to parties: Litigation, Mediation, and Collaborative Law. We will look at the impact of these choices on the parties’ finances, the family’s mental health, and the family relationship after the divorce.

Litigation
We all know this choice! Each party has his or her own attorney, his or her own therapist, and his or her own financial specialist. It doesn’t just look expensive, it is expensive compared to the other choices. Professor John Wade of Bond University of Queensland, Australia, suggests the following costs associated with a long, protracted litigated case: attorney fees; accountant fees; interest lost on money received later rather than sooner; 1–2 years of personal stress and uncertainty; 1–2 years of stress on family members; 1–2 years of stress on others and work associates; 1–10 weeks of absenteeism from work; 1–3 years of lost concentration and focus on work; life-business on hold for 1–2 years; negative publicity in press/business circles; expert witness fees.

Occasionally, clients will turn to Mediation or Collaborative Law after attempting Litigation unsuccessfully and spending huge sums of money. One party returned to Mediation after spending $90,000 in an incomplete Litigation. The Mediation was concluded for $5,000!

Additionally, Litigation is, by its nature, an adversarial process. It pits the parties against each other. One party may “win” by showing the other party is a “bad actor.” This sort of Litigation dynamic is not conducive to long-term cooperation, such as that needed for co-parenting. Even where there are no children, the parties may have family and friend relationships which are damaged by an adversarial procedure.

Mediation
Mediation is at the opposite end of the “divorce spectrum.” Mediation involves the two parties and one attorney/mediator: the parties never go to court; the parties work cooperatively with the mediator to complete the necessary financial documents to share with the other party; the same requirements for complete and accurate financial information apply in Mediation as in Litigation; the parties negotiate the equitable division of assets and debts; the parties cooperatively draft a parenting plan; the parties may decide to hire specialists if necessary, such as a neutral financial expert, a tax expert, and mental health experts for the parties and/or the children; the parties are encouraged to have the agreement reviewed by an independent attorney before final signing.

Skilled mediators help the parties communicate what’s really important to each of them and why. Interest-based negotiation is often the most effective. For instance, a husband might balk if the wife just says she wants to keep the riding lawn mower. If, however, the mediator questions Wife about why she wants it, he may quickly agree when Wife says she plans to have her brother move in with her to help with finances and that he’ll keep the yard looking great if he has the riding mower. When parties know the “why’s” that are attached to requests, it becomes easier to negotiate.

Mediators often use skills to defuse emotional disagreements, to teach parties effective ways to communicate, and to overcome apparent impasse situations. Parties who cannot communicate one-on-one often are successful with the help of a skilled, experienced mediator who guides them to agreement.

Mediation is not right for everyone. Mediation requires parties who will listen to the other party, who will not make incendiary statements which get the discussion off track, and who will compromise to reach agreements.

Collaborative Law
Collaborative Law is similar to Mediation in that the parties agree to resolve their differences without resort to the court. It is similar to Mediation in that the parties control the outcome—the case does not resolve until the parties come to agreement. It is similar to Mediation in that the parties engage in a group project (resolving their divorce issues) and, in completing that process, necessarily develop (or reacquire) the ability to work through disputed issues. This can be a tremendous side benefit of these processes, particularly when co-parenting will be a part of their future.

Collaborative Law is unlike Mediation in that there is no neutral facilitator to help the parties resolve their issues. Rather, there is a team of professionals whose goal is to represent their clients and assist them in reaching a negotiated settlement which is in the “best interest of the family.” A collaborative team may include an attorney for each of the parties; a mental health professional, acting as a “coach” for each of the parties; a neutral financial professional; and a child specialist (recommended in cases including children). Each of the professionals, in addition to their training in their professions, has specific training in the collaborative process, and in Mediation.

The collaborative process begins when the parties and the professionals sign a collaborative agreement, which instructs the professionals to work toward a settlement of the parties’ issues that is in the best interests of the family, and to achieve that settlement without court intervention. The collaborative process takes place through a series of meetings, some of which include the professional team as a whole, and many of which include the parties meeting with selected team members, such as the coaches, or the financial neutral.

Collaborative Law provides a level of protection for the clients which may be absent in a mediated divorce. Where one party is significantly more sophisticated with respect to the parties’ finances, the less sophisticated party can be at risk in Mediation. In Collaborative Law, that party has his or her own attorney, and the neutral financial professional, to help ensure that the party’s interests are protected.

Also, where there is a significant difference in the bargaining power or ability of the parties, the more powerful party can sometimes take advantage of the less powerful party in Mediation. Again, the team which is present in the collaborative process serves to “level the playing field” between the parties.

Mediation and Collaborative Law Help Clients Complete a Divorce Without Going Bankrupt
One advantage of both Mediation and Collaborative Law is that these processes are “client-driven processes.” This means that the clients are ultimately in control. The process comes to an end when the clients come to an agreement. (While this is true in any case, it is the specific goal, intent and direction of a Collaborative case.) By agreement, there is no formal discovery done in a Collaborative case. Documents are provided cooperatively to the neutral financial professional, so there is no document request. No depositions are taken. The custody plan is not the result of an extensive §730 investigation, but an agreement reached by the parties, with input from the child specialist, coaches and attorneys.

Additionally, there is no court driving the schedule. The parties are neither forced to be ready for a hearing on the Court’s schedule nor to wait for one.

Statistics from Crescent Research, Inc. for the International Academy of Collaborative Professionals (“IACP”) highlights the following: 51% of Collaborative cases are completed within four face-to-face meetings of both clients and one or more professionals; only 29% require seven or more such meetings. Thus, most Collaborative cases settle relatively quickly, resulting in cost savings for the client.

While Collaborative Law can appear to be quite expensive to the clients (it does require the retention of several professionals up front), the ability by the clients to control the length of the process, along with the more informal process, often results in cases that are less expensive than their litigated counterparts.

Collaborative cases certainly can be expensive. With the number of professionals involved, there is a certain threshold for such cases. And, where clients are not ready to come to an agreement, the process takes longer. Of course, this is true in any divorce case. In a Collaborative case, specific team members (the coaches) are in place to assist the clients through this process. One of the coaches’ functions is to help the clients through the emotional blocks which can derail the negotiations.

Also, clients who go through a Collaborative divorce can come away with “a better mouse trap.” Not only are they divorced, and not only do they have a custody plan, support in place, and their assets divided, but they have also dealt with some of the emotional issues, and they have gone through a process which has equipped them with tools they can utilize on an ongoing basis. Thus, even at a similar cost, Collaborative clients may well get more bang for their buck.

Similarly, mediation also takes clients through a joint, problem-solving experience. While the clients do not necessarily have coaches assisting them with the process, they must go through the exercise to complete the mediation. Thus, mediation clients also have the opportunity to develop an additional skill set through the process.

Further, mediation is most often done with one attorney/mediator and the two clients. While the clients may choose to take advantage of separate financial or mental health advice, it is not a necessary part of the process. The clients are also encouraged to seek external review of any agreement reached in the mediation, but many choose not to do so. Thus, mediation, with only one paid professional and the (likely) shorter case duration, is often the most economical way to handle a divorce case.

Mediation and Collaborative Law Help Clients to Complete a Divorce Without Starting War
Mediation and Collaborative Law, by their nature, are not adversarial processes. As discussed above, they are both processes in which clients work together (with the mediator or the professional team) to identify and resolve their divorce issues. All too often, Litigation can drive a further wedge between parties who are already experiencing a fractured family.

On the other hand, Litigation is an adversarial process. Written discovery, depositions, cross examination, and dueling experts can all serve to feed the already existing emotional pain and divergence of goals that exist between all parties who are divorcing. This can exacerbate the parties’ differences and make settlement more difficult.

Mediation and Collaborative Law are processes that require the clients to come to agreements. Thus, the processes are designed to put fire-retardant, rather than additional fuel, on the dissolution fire. This can have obvious lasting positive benefits not only for the parties but also for their children and extended families.

Mediation and Collaborative Law Help Clients Complete a Divorce Without Fracturing the Family
The economic downturn is affecting how people choose to divorce, but it also may be affecting whether or not couples divorce. Stephanie Coontz, a History and Family Studies professor at Evergreen State College has written several books on marriage and family. She believes that the current money crisis has made it too expensive for couples to divorce and may be forcing families to live together in stress and unhappiness. She likens it to World World II depression times when families unable to afford to divorce would string up a blanket to divide a room where they would live “separately” but in the same house!

Too many families are fractured by the adversarial nature of our court systems. When parents get embroiled in each issue and begin to see the battle as a personal “win/lose” situation, the children are the ones who suffer. The fracture often lasts a lifetime.

National Public Radio (NPR) aired a program in 2006 called “An Argument for Mediating Divorce,” quoting several experts in the field of parent/child relationships. Child psychologist Robert Emory conducted a study to observe the effects on parent/child relationships after a divorce. In his study, parents flipped a coin to be assigned to mediate or litigate their divorce. Twelve years later, Mr. Emory found that in families that went through mediation, the non-custodial parent was five times more likely to have weekly phone contact with his or her children. This is not a surprising result. It is reasonable to expect that parents who fight in court will be less likely to be cooperative parents after the divorce.

In the NPR segment, Stephen Perrine was interviewed about his professional and personal beliefs about the parent/child relationship during and after a divorce. Mr. Perrine was editor-in-chief of Best Life Magazine and had often written for the New York Times. Mr. Perrine states that our legal system “is exactly what you should not do if you want to keep both parents intimately involved in the child’s life. And that’s why recent studies have shown that one in five children of divorce has not seen their father in the last 12 years.”

Both Mediation and Collabor-ative Law foster a cooperative process which engenders a strong, loving relationship between children and both of their parents. The mental health professionals used in both methods skillfully guide both parents to understand the importance of a solid relationship with both Mom and Dad. Everyone wins in these cases. Both Mediation and Collaborative Law methods offer less expensive and less emotional options to allow families to divorce while allowing both parents to parent the children cooperatively.


John Denny is an associate with Minyard & Morris. Judith Williams’ web page is “The Center for Mediated Divorce.” Both offer mediation as an alternative to litigation in their practices.

 

 
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