When you are facing a divorce, you have an endless list of questions. What assets and debts will I end up with? What will the children’s lives look like? How much money will I have to live on? Can I keep the house? And these just scratch the surface. But most people at the divorce tipping point don’t consider perhaps the most important question of all, which is how are we going to get to this outcome?
Divorce is not a one size fits all proposition. Every family is unique, and the needs and circumstances of your family are likely completely different from any other family. There are different processes to get to that divorce finish line, and finding the process that fits your family is one of the most important and foundational decisions, because it will have a profound impact on how you experience the divorce, how much control you exercise over the outcome, and how much it will all cost.
Most divorcing couples today are opting to focus on out of court settlement rather than battling it out in court. Court-centered divorces are the most expensive both in terms of financial and emotional cost. Court battles destroy family relationships. Letting a Judge make this life-changing decision should be thought of as a last resort. Mediation is one of the oldest structured settlement processes. In mediation, the clients meet, sometimes together, sometimes separately, with a neutral mediator, who facilitates settlement discussions in a methodical way. The mediator cannot give either client legal advice, but can educate the clients on what the law is. The problem with this model is that clients need legal advice. If you don’t have the insight of an attorney who is looking out for your interests, you won’t know what to negotiate for or whether the agreement you do negotiate in mediation is a reasonable and fair resolution of your issues. And if you wait until after you’ve negotiated an agreement in mediation to go to a lawyer for advice on whether to sign it, you’re likely to be told that there are things about the agreement that the lawyer has concerns about, and they will encourage you not to sign it, and then you’ll be in the position of having spent time negotiating something that now has to go back to square one at best, or sends you off to a court-centered process at worst.
The solution is Collaborative Mediation. When clients hire Nancy Brodzki as their mediator, the first recommendation is that the clients hire collaboratively-trained lawyers to consult with throughout the mediation process. In an ideal situation, the clients together along with the mediator interview potential lawyers, and then the clients decide which lawyers to hire and who will represent whom. In some cases, the mediator provides each client with a short list of lawyers to consult, and each client makes their own decision independent of the other client. Either way, the lawyers that are hired to consult sign an agreement that provides they are only engaged to consult and support the client through the mediation process, and will not, under any circumstances, litigate the matter in court in the unlikely event that mediation does not result in a settlement. This promise, known as a disqualification clause, is the essential ingredient that makes this process a truly collaborative mediation. Mediators can never represent one of the clients if mediation breaks down. They are neutral from beginning to end. But collaborative lawyers are not neutral. They are zealous advocates for their clients. In collaborative mediation, the lawyers nevertheless commit to focus only on settlement, and their goal is to help the client negotiate for their own desired outcome while rejecting the option of a court battle as a viable alternative. The lawyer thus has no incentive to counsel a client to walk away from a fair settlement, dangling the possibility of an “even better outcome” (which is highly debatable) in court.
Collaborative lawyers and mediators all share the same philosophy. It is better to reach a compromise out of court that you can live with than it is to “win” in court. “Winning,” to the extent that there are winners and losers, isn’t what you might think. Divorces are filled with multiple issues. Rare indeed is the divorce trial where one client walks out of court beaming with joy over the outcome. Everyone wins, and everyone loses. It’s only a question of degrees. Collaborative Mediation brings the right kind of lawyers into the mediation process so that clients get the advice and guidance they desperately need, while controlling the cost involved. Most consulting attorneys in this situation charge small retainers, and charge an hourly rate for the time spent. They enjoy being part of the solution, rather than being seen as part of the problem.
If divorce is on your horizon, you should strongly consider collaborative mediation as your preferred process to reach that desired outcome.
