Alternative Dispute Resolution Can Work For You in Your Divorce
May 12, 2019
A few weeks ago I went to the annual Pennsylvania Council on Mediators Conference. One of the wonderful things about going to a conference is that it gives me time away from the day-to-day practice to refresh and reconsider. The positive energy in the seminar rooms reminded me that for many couples there may be a kinder way to dissolve their marriage, and I came away with renewed dedication to promoting the tools in my alternative dispute toolbox to make the divorce practice less stressful for our clients.
Much of traditional divorce practice can devolve into a win/lose strategy. When the Court titles the case Smith versus Smith or Jim versus Jane, the matter organically starts out as he against she fight. So, when we begin with Jim fighting Jane, or vice versa, it seems reasonable for the parties to think they need a “heavyweight” in their corner. Indeed, in our office we sometimes field calls from potential clients asking if we can fight for them like a bull dog? We understand that clients may be hurt and/or angry and think they need a lawyer who will bark and roar and bite if necessary to win, but we think this approach to divorce oftentimes results in long-term destruction to family good will, and fractured lives– especially if children are involved. Alternatively, if the divorce process can be framed not as a one versus the other, but as an action in the best interests of the family to move forward with the least destruction all the parties (children included) may come out more whole.
Consider Alternatives to the Traditional Process
Traditional divorce often is a closed, rather than an open process. An adversarial couple may dispute sharing child custody, schedules, routines, etc, child and spousal support may be litigated and equitable division of assets may be hotly disputed. Not surprisingly, the more unresolved feelings between the spouses, usually the more issues end up in court rather than worked out through negotiation and settlement. Custody may end up being decided by a third party who really does not know the child(ren). Nasty things may be written in pleadings filed with the court. A court appointed Master may determine how much a spouse will pay to support a family. Parties reluctant to divide assets fairly may try to hide assets. Costly discovery becomes necessary when there is distrust and fear of hidden assets. The attorney must do due diligence to look for the hidden assets. Parties may return to Court numerous times for hearings. The process can drag on, and costs will escalate. In the end neither side may be happy with the results, nor with the aggressive attorney that the party wanted so desperately to hire at the start. Indeed, one or both parties may find that the “bulldog” chewed up a lot of assets, and tactics employed unintentionally may have destroyed any goodwill that still was intact in the family.
It does not have to be this way. There are alternative ways to resolve divorce, custody and other family law related matters- treating the divorce as “in the interests of the Family of X;” using self-directed processes; interest based negotiations, and even using limited attorney representation. As I come to believe these alternatives can be beneficial I encourage those reading this to consider these alternatives.
Using Alternative Dispute Resolution for
Divorce in the Interests of the FamilyMEDIATION
Mediation is Voluntary, Confidential and Can Be Healing
Mediation is a well-established process for resolving disputes with the help of a third-party neutral mediator. The mediator does not provide legal advice or represent either party, but serves to guide the process and help the parties to decide what they want to discuss; what issues they want to resolve; and assist them to work toward an agreement. If the parties do not reach agreement, in many cases, they find the discussion and the opportunity to talk in a safe environment help to heal differences and to move on.
In Pennsylvania, Mediation is a completely accepted form of dispute resolution and is governed by statute found at 42 Pa.C.S. A.§5949. By statute all communications in a mediation are confidential, unless the parties to a mediation waive the confidentiality.
The primary benefits of Mediation are that:
- It is self-directed ;
- You – the parties get to set the agenda, and determine the outcome;
- It is empowering:
- Parties are not ceding power to attorneys, who may be more (or less) aggressive than they are comfortable with; or to judges who know nothing about you;
- It encourages an atmosphere of communication: —
- Even if a marriage is beyond repair, this is helpful in healing
- When talking about custody, this is essentia
- It is constructive, rather than destructive;
- You focus on solutions, rather than harm;
- It is less costly
- Generally the parties share the costs of the mediator:The costs usually are defined up front and should not be open ended as in the traditional divorce model.
Should Mediation not be an option for parties, consider other choices….COLLABORATIVE DIVORCE
Collaborative Divorce is Respectful, Transparent , and Non-litigious
Tired of nasty, litigious, destructive, and unhealthy traditional divorce practices, a more open, respectful and non-litigious type of divorce was created in the early 1990s. This practice was called collaborative divorce. The concept was founded in Minnesota, quickly adopted on the West Coast, and later found adherents on the North East.
Collaborative divorce is just what its name implies. The parties and their lawyers collaborate together in a team approach in the best interests of the family. Each spouse hires an attorney who is part of a “network” of attorneys who are trained in the collaborative process. Although each attorney represents his/her client, they agree to work together collegially, rather than adversarially to reach a result. The parties and their attorneys agree to be transparent with respect to assets and inabilities. There should be no costs for discovery, unless assets are complex and the team decides to hire a financial advisor, who will become part of the collaborative team. The team also may hire mental health professionals to support either spouse, or children, if they are involved.
The collaborative process is designed to keep cases out of court, and most collaborative attorneys require clients to sign an agreement stating that if the process should break down, they will have to hire a new attorney to litigate the case.
In Pennsylvania, on August 27, 2018, an act was passed governing Collaborative Practice. It is called the Pennsylvania Collaborative Law Act (PCLA) 42 Pa C.S. A. 7401., which brings uniformity to the collaborative law practice in Pennsylvania.
The benefits of Collaborative Law for Divorce are
- It is a team effort: Everyone is empowered and the unit is seen as a family
- It supports all the parties: This is particularly good if children are involved
- It is respectful: The attorneys are committed to being professional
- It allows participants an opportunity express themselves: This is important for a healthy process and for moving on; This helps with co-parenting in the future
- It generally has a good success rate: Because the parties are part of the discussion, they assist the lawyers in Crafting the ultimate agreements
Control Your Case and Control Your Costs with Help from an Attorney
Finally, not everyone can afford a lawyer, or even the services described above. That does not mean they should be condemned to life in an unhappy marriage., or foreclosed from fighting for their children. Going the pro se (self –representation) route is a choice for some, however, it has many limitations. The law is complex, and pro se litigants are at a distinct disadvantage. Self-represented litigants are to be treated the same as those represented by attorneys, and Judges are not to give them any special treatment .
A better option for those who can afford it, is to control their costs and control their case. A way to do is by hiring an attorney on a limited representation basis. Fortunately, there are attorneys who will assist clients – either as a coach- or on a limited services basis– to help clients procure their own divorce or other family service. Attorneys willing to work this way may be available to assist with everything from drafting a complaint, helping with service of process, calculating child and/or spousal support; ghostwriting for motions; and drafting a property settlement agreement. Attorneys as coaches also may be consulted for strategy, and discussions about what types of facts a litigant may need.
These types of arrangements are called limited scope legal representation, unbundled legal services, coaching, or something else. Regardless of name, they are legal, and have been approved as ethical for lawyers to do, at least in Pennsylvania.
The traditional representation model may be what you need or want still, however, alternative modes of dispute resolution are available, and think first before hiring the bulldog, because it may come back to bite you.
For more information on Alternative Options for Dispute Resolution, call our office at 610 565-6200