Tuesday, December 25, 2007

In Search of the Kinder and Gentler Divorce: Mediation and Collaborative Divorce vs. "Traditional" Divorce

What is the best way to get a divorce? It appears there are more options these days than ever. What used to be called simply "divorce" is now being labeled "traditional divorce" as purportedly new methods of resolving divorce disputes are increasingly being promoted, through marketing efforts which are surfacing throughout the media.

Everywhere I turn, I am reading articles about what advocates tout as alternatives to "traditional divorce." Most of these articles appear to be warmed-over press releases from proponents of the purportedly new methods of divorce, including mediation (which is not really new but which has received a great deal of recent attention in the media), and that latest flavor of the month, which is known as "collaborative law" or "collaborative divorce." Mediation and collaborative law may be the right choice for some divorcing individuals, but they will definitely be the wrong choice for many others.

On December 19, the following article, by Associated Press writer David Crary, appeared everywhere, or at least in two of the many reading spaces I regularly visit, namely, the Worcester Telegram and Gazette - Worcester Telegram & Gazette: "Divorce doesn’t have to mean going to war in court; Collaborative approach or mediation replacing more costly litigation," By David Crary, Associated Press, December 19, 2007 - and Findlaw.com. This Associated Press article is a great place to start if you want to know something about collaborative law and particularly if you want to know how its champions are promoting it.

To get a more balanced perspective, however, you should also read Caryn Tamber's recent article in the Maryland legal periodical, the Maryland Daily Record, Maryland Daily Record: "Proponents love it, but traditional divorce lawyers see little use for ‘collaborative divorce’" by Caryn Tamber, which examines some of the most troubling problems, both practical and ethical, with the collaborative law method, and projects a helpful spotlight on the inflated claims and hype surrounding collaborative law.

Last week, when I first saw the AP article in the online version of the Worcester Telegram and Gazette, I also did the accompanying online collaborative law poll on that website (see below). This poll had only a small sample of respondents (60 including me) at the time I did the poll to get the results you see here. Nevertheless, these results, which show far less faith in the success of collaborative law than the accompanying article does, may be closer to the truth than the article is. Of course, neither the poll nor the article is scientific, and neither provides the answer to the question of whether collaborative law will be successful in any given case.


Most people, including even "traditional" divorce litigators like me, are fond of saying it is best to resolve differences and settle divorces "out of court." Indeed, I think lawyers are the most likely to want to avoid personally ending up in a strange court, just as doctors are perhaps most likely to fear landing in a strange hospital, because lawyers and doctors are most aware of all the things that can and do go wrong in their respective arenas.

Yes, it's true that we should try to stay out of court whenever possible. But what do we mean when we say that? It's not as simple as is often imagined. Divorce is a legal process that, at least to some degree, must be handled in court. At a minimum, there must be approval by the court of the divorce agreement of the parties, after mediation or some other process, whether involving litigation or not, has led to such an agreement. Furthermore, divorce is also a process that almost always requires some form of negotiating, involving compromise and mediation of some sort, and ultimately settlement, whether it is through "traditional divorce" or "collaborative divorce" or "mediation" and whether issues are hotly contested and litigated or not.

It is the rare case on which nothing is agreed upon and everything is determined by a trial. In fact, it is the rare case, even among the hotly litigated ones, that results in any trial at all. However, most divorce cases actually do end up "in court" for at least one or two contested hearings, before final resolution of the divorce is reached by agreement of the parties.

I always ask prospective clients who have come to me if they have attempted family counseling to save their marriage, and if they have attempted mediation or other "outside of court" methods to resolve their marital disputes. Most of them say either that they have indeed already done so, and it was a waste of time and money,or that they have not done so, as it would have been a waste of time and money, or that the other party would not agree to do so.

As my law practice does not offer mediation services, but only "traditional" divorce, I am more likely to encounter people who have the more difficult problems that require some litigation of various issues in court. Most people who come to see me are indeed in that very uncomfortable, unfortunate situation - that is, they will need to attend one or more hearings in court, even though they will most likely never need a full-blown trial.

It is great when people can be mature and "divorce well," but that is not often the case. To understand why, you must simply consider that divorce for most is inherently a deeply personal, painful, and unwelcome disruption. Even "no-fault" divorce is described as an "irretrievable breakdown of the marriage" to use the Massachusetts legal language, as divorce involves the severing of a most important relationship that affects all aspects of a married person's life. Consequently, there is certainly some truth to the cliché "criminal defense lawyers handle bad people on their best behavior, and divorce lawyers handle good people on their worst behavior." (I should know, as in my practice, I handle both criminal defense and family law. But I would actually amend that cliché as follows: Divorce lawyers handle all kinds of people on their worst behavior.)


And, despite what you may read to the contrary in some of the articles on this subject, it is not only the toughest cases - involving mental health issues or accusations of abuse - in which parties to divorce are unsuitable for collaborative divorce or mediation. All it takes is for one of the two parties to a divorce to be very angry, confused, or unreasonable, and you have a situation in which the so-called "kinder and gentler" means of divorce (mediation and collaborative divorce) either won't work, or will actually both not work and cost litigants more time and money than "traditional divorce" as the parties will ultimately have to use both methods, one followed by the other.

And what is so inherently expensive and necessarily vexatious about the traditional divorce process, anyway? In Massachusetts, the divorce procedure, for contested divorce, has some built-in provisions to encourage parties to resolve their disputes "out of court": there is a six-month waiting period after the filing of a contested action for divorce before one may mark the case for a pretrial conference.

Before the pretrial conference, at which a trial date is set if the case has still not been settled by that point, there must be a four-way meeting, in which both parties and their attorneys are required to sit down and try to resolve every issue in the divorce. At any point in the litigation of a contested divorce case, the parties and their attorneys may decide to have a four-way meeting even when not required, or otherwise resolve their divorce through negotiation between the attorneys, and settle the case, much as would a couple through mediation or collaborative law.

In fact, in many of my divorce cases, which are often litigated to some degree as contested cases in court, at least one party frequently chooses not to do complete discovery, or otherwise chooses not to do all that is presumed to be required in litigated cases, either out of the belief that there is full knowledge and disclosure of relevant information needed about the other party, or on account of some degree of trust of the other side regarding basic issues or information. That is so even though there may nonetheless be one or two difficult issues to resolve, and thus there remains a need for the pressure of litigation, and the uncertainties of a pending trial, to help bring the other side to the negotiating table before any trial actually takes place.

In collaborative law, the lawyers agree at the outset not to litigate, and voluntarily exchange information, rather than engage in formal discovery, all with a view toward reaching an agreement that will preclude the need for litigation in court. But many times, such cooperation and efficiency is similarly possible between parties and their attorneys in traditional divorce cases, in which a contested divorce complaint is pending in court. In my experience, a lot of these so-called traditional divorce cases end up being as cheap or cheaper than they would be if handled by lawyers formally trained in collaborative law, and are often conducted in a much similar manner, although without the built-in difficulties of formally renouncing many of the normal tools of the attorney's trade, as in collaborative law.

There are so many variables in divorces, and really, any good divorce lawyer should be able to handle divorce in a collaborative law manner, or in a hotly litigated manner, as the case may require. That is just good lawyering, in my view. I am indeed very impressed with some of those who are highly skilled in mediation and collaborative law, as the more tools in an attorney's toolkit, the better. And on those occasions when my prospective clients do seem to be good prospects for mediation (but not collaborative law, which I think can be performed quite well by me or by any other good "traditional" divorce lawyer), I send them to a good divorce lawyer who practices mediation.


I would only say, at the risk of sounding self-serving, that one should avoid divorce mediators who are not lawyers. In my experience, such mediators have often misled clients in applying the law to the facts of their cases. I have had more than one case in which a psychologist acting as a mediator helped divorcing individuals to reach an agreement, only to have one of the parties discover after going to an attorney (like me) "just to check over the agreement" that the agreement had incorrectly calculated child support, or otherwise had included provisions which were really not "fair" to one of the parties, as these provisions would not have been negotiated by equally informed and equipped attorneys knowledgeable about the law and how it is applied in the courts by judges. Then the parties had to revise their agreements, or start over in their negotiations, with a competent mediator, or with two "traditional" lawyers.

Lest you assume I am self-serving to my profession in this stated preference for lawyers as mediators, I should add that I often express a bias in favor of mental health professionals over lawyers when suggesting or choosing guardians ad litem, to investigate issues of custody and parenting time, because I have found mental health professionals are more likely to be competent in that particular task, and for the same reason - i.e., their training has prepared them for it. Divorce is a legal process, involving the law of divorce. Divorce mediators should be lawyers.

Those who are contemplating a divorce should know that whether they ultimately decide they need a mediator, a collaborative lawyer, or a traditional lawyer, for their divorce, they should always pick a lawyer who is experienced and knowledgeable in the area of divorce law, and preferably one who has had recent experience in the family court where their divorce case will be heard, no matter how simple or complex they think their divorce may be, and even if they think their case can be handled mostly "out of court."

When so much is at stake, divorcing parties owe it to themselves and to their family to try to do their divorce right the first time. Simplistic slogans are not to be believed. All who are contemplating divorce should go alone to see a good divorce lawyer who can explain all of the options and give them a clear idea of their individual rights and obligations, and an honest assessment of their particular legal situation. Then, and only then, will they be confidently able to determine if they should use a mediator, collaborative lawyer, or traditional lawyer for their divorce.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

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