Authored by: Sarah J. Gabinet
Often, couples think that there is only one way for them to end their marriage—in a courtroom with a judge who will decide their financial futures and the futures of their children as well. The court process can be the appropriate forum in some situations. But, for too many the court process leads only to a long, expensive court battle in which no one wins. Children are pressured to choose one parent over the other, assets are diminished, property is sold at a loss or its value is inflated. Every incident during the marriage is dredged up, each spouse hones in on the weaknesses of the other and the focus is on who is to blame for a family in crisis. In the end, spouses are more polarized than ever, resentful of one another and disappointed with an outcome that satisfies neither of them nor their children.
There is a better way to divorce, if that is the path that needs to be taken. A number of alternative dispute resolution methods have been tailored and developed to assist couples in ending their marriage without a court battle. All of these methods focus on interest-based negotiations. In these negotiations, the parties are asked to identify their interests and goals, rather than just being asked what their position is on a given issue. Based on the identified interests, the spouses then generate options and arrive as solutions for their family that meet those interests and goals to the greatest extent possible. The spouses end the marriage by a dissolution in which they sign all their final written agreements, file them with the court, and only appear once in front of a judge to confirm those agreements.
These alternative dispute resolution methods include Collaborative and Cooperative processes, mediation, facilitated mediation, arbitration and even cooperative litigation. In all of these approaches, the couple works privately, rather than within the court system. The couple retains control of the process and the outcome, and strives to achieve agreements that are meaningful and sensible for their particular situation.
In Collaborative and cooperative processes, each spouse is represented by an attorney and, generally, the couple and attorneys engage in four-way meetings to share financial and other information, develop interests, work on parenting plans and the allocation of assets and debts and consider the needs of the spouses for future financial support. In Cooperative processes, the couple also select a process to resolve impasse so that neither of them files a divorce complaint in court without first attempting to resolve an impasse by one of several available methods.
Mediation is an approach in which the couple engage a trained divorce mediator who assists them in communicating with each other to reach agreement on all issues of the divorce, including finances and children’s issues. The mediator does not give legal advice to either spouse, and each spouse is entitled to independent legal counsel to advise them throughout the mediation process.
These processes involve more than just “settling the case.” These processes require that the couple is willing to be open and transparent, even when there might be mistrust and negative feelings. These processes also require that the lawyers be trained and experienced in divorce mediation and interest-based negotiation.
More information and detailed descriptions of these processes can be found on the website for the Center for Principled Family Advocacy, www.famad.com.