A nonadversarial divorce process can work even where there is conflict

Do not automatically assume that alternatives to litigation are not for you.

There are benefits to getting divorced with a level of peace and cooperation. It does not mean you agree with everything your spouse did to contribute to the marital breakdown or that compromising makes you weak. In fact, there are many benefits to nonadversarial divorce processes like mediation or collaborative divorce that most people facing divorce should consider.

Traditional negotiation

In traditional divorce, each party usually has an attorney and the lawyers with input from their clients try to negotiate a settlement agreement. This can work out well, especially if the parties have serious trouble talking face to face and they are willing to actually let their lawyers make reasonable compromises in negotiation. If a settlement can be reached, the parties will not have to submit to an adversarial trial before a judge.

Litigation

In traditional divorce, if the parties are unable to compromise, are especially hostile to one another or if one of them acts unreasonably in negotiation, they are likely to end up in court. While there are times that a trial is the option of choice or just inevitable, litigation can be very expensive, can open up private matters to the public and can be stressful to all involved, including children. Older kids are more aware of issues being litigated like custody and visitation, while younger children pick up on the stress and strain their parents are feeling.

The other downside of litigation is that neither party is in control of what the judge decides, despite having a lawyer who presents strong evidence and makes compelling arguments. Sometimes, a judge will make an important decision that neither side likes, and it can concern something important like where your child lives.

ADR

Even if the parties are emotional and angry, trying an alternative dispute resolution or ADR method like mediation or collaboration gives them more control because the final agreement will be a compromise that they both can live with.

A quick review: mediation is a negotiation method in which the parties hire a neutral, specially trained third party to help them work through negotiation impasses and suggest possible compromises in an attempt to get to agreement, even if it is only on some issues.

Collaborative divorce is a novel method in which the parties promise not to go to court. They instead negotiate in a series of four-way meetings that include each of their attorneys. If the process breaks down, they each must hire a different lawyer to start over in a new process. In collaboration, the parties pledge to treat each other with respect, bring all necessary information to make an informed agreement voluntarily and honestly to the table and keep the process confidential. In addition, they may jointly retain experts to help them negotiate such as financial planners, appraisers, parenting consultants, child specialists and divorce coaches.

A divorce coach is a specially trained professional, sometimes with a mental health background, who helps the parties deal with emotions that come up in the collaborative process as well as provide communication techniques.

A recent article by a family lawyer who also practices mediation and collaboration shared tips:

  • Special training of mediators and collaborative lawyers helps even spouses at odds lessen conflict.
  • Retain a lawyer that not only knows the way around the courtroom, but also is trained in ADR methods, so you have choices.
  • Do not assume your spouse will not use ADR.

Divorce attorney James Cuddy of The Law Offices of James A. Cuddy, LLC, in Shelton, Connecticut, represents clients in collaborative divorce, mediation and traditional divorce.