Divorce is difficult under the best of circumstances. At Brodzki Jacobs & Brook, we believe it is always better to settle your differences than to fight it out in court. Litigation is expensive, time-consuming and can have a devastating emotional impact on both you and your children. In Court, you get a very limited amount of time, and the Judge, a complete stranger, gets a limited amount of information to decide what the rest of your life will look like.
Once a divorce case is filed with the Court, the parties must at least attempt mediation before they can ask the Judge to decide the case. Mediation is where most filed divorces are settled. You and your attorney, your spouse and his/her lawyer, and a neutral mediator (often an attorney experienced in family law), spend what is usually the better part of a day negotiating the details of your divorce, drawing up a settlement agreement (often after several drafts and many revisions as the parties and the lawyers read through it) and signing it that same day (typically).
The most cost-effective use of an attorney’s time is in preparing your case for a settlement out of court. Settlement negotiations, mediation and collaborative practice are three processes that are available to resolve your case outside of court. Many cases are resolved by negotiation, mediation or collaboration before a case is ever filed with the Court. Not filing with the Court right away gives the parties the most flexibility since there are no court deadlines to worry about. This is known as pre-suit alternative dispute resolution.
Direct settlement can take many forms, from the parties working together around the dinner table to both parties having attorneys and negotiating around a conference table. Sometimes the attorneys will negotiate through email and telephone calls.
Mediation in the pre-suit resolution model often takes on a different look than mediation within the context of litigation. Instead of a single marathon mediation session lasting 8 or more hours, pre-suit mediation is often broken up into smaller blocks of time, tackling a parenting plan in one session and property division and other financial issues in a second session. Shorter sessions are often more tolerable for the parties, who can find themselves overwhelmed and drained in marathon mediations. Having time for reflection regarding the options being considered is another benefit to this kind of mediation, instead of feeling pressured to “get it done right now”.
Collaborative Divorce consists of both parties having their own attorneys, who work together in a cooperative, team approach to develop the financial and family picture of the parties and help the parties reach a full and comprehensive settlement. Ideally the team includes a facilitator (usually with a background in a mental health discipline) to guide the settlement discussions, address emotional issues, and be the truly neutral voice in the room. In many cases, a financial professional is included as part of the team, whose role is to be responsible for vetting financial options and educating the parties on the financial circumstances of the family. The team works together to assist the parties in reaching a fair and equitable settlement for the family.