Learning from the ‘War of the Roses’
Traditionally, most divorce cases have begun with the filing of a divorce petition, setting in motion a legal process by which the case would be ultimately resolved by a judge unless the parties were able to settle their differences outside of court.Increasingly, however, lawyers and their clients are exploring creative ways to resolve divorce cases without submitting their disputes to a judge to decide.While necessary in some cases, litigation should not be commenced without careful consideration of the downsides and the likelihood of achieving a party’s goals through the court process.Disputes over the appropriate scope of discovery, parenting issues and other motion practice may delay the resolution of cases for years. When disagreements are not timely addressed by the court, parties may resort to self-help, creating new disputes, heightening acrimony, and adding to the complexity of the case at the time of final resolution.In an effort to align the process with the desired outcome of a durable settlement, many parties are now opting to first negotiate settlement of parenting, support and property issues rather than filing a divorce petition as step one.If all issues are resolved, comprehensive settlement agreements can be filed along with a joint petition for divorce. The parties may waive their right to a hearing and request that the court approve their agreements as part of the final divorce decree.Even when parties resolve most, but not all, issues in dispute, good faith negotiation at the outset — resulting in a narrower list of issues to decide — can reduce the cost, time, tension and loss of control inherent in the litigation process.Alternative dispute resolution models have several common characteristics. Privacy and confidentiality are hallmarks of each model. Information exchanged by the parties, as well as settlement offers, statements and discussions, remain confidential. If parties are unable to resolve their differences without a court process, they may not refer to settlement proposals or statements of the other party in court as evidence. If a mediator or other neutral professional is employed, the parties may not call that person as a witness.In one model, the parties select attorneys who are willing to work informally and cooperatively to exchange information about income, expenses, assets, debts and parenting preferences with the shared goal of exchanging proposals and reaching agreement on all or most issues in dispute. Ideally, the parties agree to ground rules about timing and commitment to the process, full disclosure of financial information and mechanisms for addressing time-sensitive issues, such as use of the marital home, temporary support and parenting schedules.If the process does not move forward, or issues arise requiring court enforcement, either party may opt to file a petition for divorce and request orders from the court.Mediation, collaborationParties may also choose to engage in mediation prior to filing a divorce petition. While parties may choose to attend mediation without counsel, our experience is that mediation is most likely to be successful when attorneys are present.The mediation process allows for both parties and counsel to work in the same room with the mediator, or to caucus separately and have the mediator shuttle between rooms to review, question and analyze competing proposals, encourage compromise, and assess risk of trial.When the parties’ dynamics and history make it impossible for them to be in the same room for settlement negotiations, mediation with separate caucuses may be the best alternative to litigation.Another model is the collaborative law process, which is distinguished by the unequivocal commitment to settle the case outside of court and the recognition that divorce is an emotional, financial, and legal event in the lives of the divorcing spouses.Although collaborative cases may involve only two lawyers and two clients, the collaborative model also allows for the participation of a mental health professional, frequently referred to as a “divorce coach,” to facilitate communication between the parties and address emotional issues that might otherwise derail the settlement process. The parties may also engage a financial expert or a child specialist.These individuals are “neutrals” in the process. They do not advocate for either party’s interests, but assist both parties in identifying potential solutions to the divorce puzzle.Resolution takes place through a series of structured meetings, with ground rules that encourage listening and the use of non-inflammatory language.While it is not appropriate for all clients, the collaborative process offers the greatest potential for transformation. The structured, team-based approach of the collaborative model opens the door to an emotionally and financially healthy restructuring of the post-divorce family.There is no one “right” way to resolve a divorce. Each family and each case is different. If there is a history of domestic violence, substance abuse or mental health disorders or disease, one-on-one negotiation or mediation without counsel is not appropriate.The length of the marriage, relative economic power of the parties, complexity of parenting and financial issues, existence of fault grounds, and trust and ability of the parties to communicate with one another are all factors to consider in designing the most cost-effective, least acrimonious and legally fair divorce process.One thing is certain: Clients deserve, and should expect from their counsel, a thorough analysis of the options available to them in resolving their divorces, rather than a one-size-fits-all initiation of a case through the filing of a divorce petition.Attorney Nancy L. Ball is a director at the law firm of Shaheen and Gordon. Tracey Goyette Cote also is an attorney at the firm.