Your Divorce Options

The first step, and possibly the most important, is for you and your spouse to determine how you will divorce.  Your process options are straightforward, either litigate or select a negotiation process.  At one end of the “negotiation spectrum” is where you and your spouse sit at the kitchen table and negotiate. At the other end is negotiating as adversaries in the shadow of litigation.  In between these two poles is the process sweet spot for most cases, what Ken refers to as “amicable negotiation” – Mediation, Collaborative Divorce, and Cooperative Negotiation.

What you and your spouse want as individuals and as a family when children are involved is an effective, efficient, fair, and respectful negotiation process. An effective process seeks to achieve the goals you identified, for yourself and the children, as well as those of your spouse. With a win/win mentality, you both walk steadily into your post-divorce life. We also strive to make the process efficient in terms of time and costs.

Mediation

Mediation is a process in which a neutral third-party mediator helps the parties to reach a mutually acceptable agreement. The mediator does not provide legal advice or make decisions for the parties but instead works to facilitate communication and negotiation between them. This approach can be very effective when the parties have a good working relationship and are willing to compromise. 

Many consultations begin with the client believing legal representation is not necessary. This is often motivated by the expense of an attorney and avoiding the risk that their lawyer would intensify the conflict between the parties.  But, mediation does not eliminate the need for lawyers. At the very least, the parties in divorce mediation are usually encouraged to get the advice of counsel before signing their divorce agreement.   The cost associated with relegating lawyers to the sidelines can be substantial, substantively, and financially.   Real-time legal advice, particularly in family law, is crucial because of the numerous issues and the potential for emotional “interference”. 

Collaborative Law

Collaborative Law offers the parties, counsel, and neutral professionals, the opportunity to create a safe place for difficult conversations.  To address the emotional, financial, and legal aspects of the conflict efficiently and effectively, in addition to collaboratively trained lawyers, the practice of collaborative family law often involves mental health professionals as neutral coaches and neutral financial specialists. Each party has a lawyer who functions as an advisor, negotiation strategist, educator, and advocate.  The collaborative law process often used by divorcing couples can also be used for pre- and post-nuptial agreements and the resolution of post-divorce issues. 

The parties sign a written agreement, the participation agreement (“PA”), committing to the negotiation of a mutually acceptable agreement without going to court.  If either party chooses to go to court, the collaborative professionals must withdraw from the matter.  The import of the disqualification clause is that it encourages the parties to emphasize open communication instead of gathering evidence, it assists clients in concentrating on the future rather than the past and transforms the focus of negotiation for both clients and the professionals by removing court as a constant backdrop.

The PA also establishes the protocols for the process, which include open communication, voluntary information sharing, a shared commitment to proceed honestly and respectfully, and the goal of meeting the needs of both parties and the children.  

Cooperative Negotiation

The cooperative PA is a legally enforceable contract expressing the parties’ intentions to resolve their conflict amicably using cooperative negotiation techniques.

It is hardly surprising that many clients have posed the following question to their collaboratively trained lawyers: “Why is it that we cannot agree to collaborate without agreeing to fire our lawyers?”  This is a fair question.  Of the many positive consequences of the disqualification clause, most significantly, it fully aligns the interest of the lawyer with those of the client – reaching a settlement.   Nevertheless, it is understandable that clients may not be comfortable with the clause.  A cooperative negotiation is an alternative process designed to foster an amicable negotiation focused on settlement.

Cooperative negotiation uses an agreement virtually identical to the collaborative participation agreement but without the provision requiring the withdrawal of counsel. The agreement preserves the voluntary sharing of information, respectful communications, maintaining the confidentiality of the negotiation process, the use of an interest-based, problem-solving style of negotiation, and other elements of the collaborative PA.