may012009

Mediation and Collaborative Law vs. Litigation:

Hire a Wise Owl, Not a Shark

Karen A. Stansbury, Esq.

Founder and Co-Chair, Professional Women’s Alliance of Connecticut, pwa-ct.com

May 1, 2009

A potential client who wants a divorce has three options: traditional litigation, collaborative divorce, or mediation.

Sharks

Traditional litigation is time consuming, emotionally draining, and expensive, and the client has no control over the process, or the outcome. The attorneys fire motions back and forth at each other, and spend thousands of their clients’ money in travel time to court, waiting to see a Family Relations officer to attempt a settlement, and then waiting again to be heard by a judge. If the judge assigned to the file is overloaded with other matters, the motion/s may be put off to another short calendar date, whereby the entire process begins again. Discovery, or information gathering, is drawn out and expensive, and may include depositions, psychological evaluations, appraisals and hiring a separate attorney to represent the children. The only people who “win” in this scenario are the lawyers.

Wise Owls

Collaborative divorce is conducted in a series of four-way conferences, which may include other professionals such as financial planners, therapists, or a representative for the minor children. The parties agree to full disclosure of assets, and to be respectful and cooperative. At the beginning of the process, a written agreement between the parties may include a provision that if negotiations break down, the clients start over with new attorneys.

Collaborative divorce is usually, although not necessarily, much cheaper than litigation, depending on the number of outside professionals required to get the family to a fair agreement. On the plus side, the process provides clients with a voice in every aspect of the divorce, including who is to be the defendant, how will s/he be served, and what the return date will be. Discovery, or information gathering, is relatively painless, and there are no hearings or depositions. In the end, a separation agreement is generated, and the only time the parties see the inside of a courtroom is at the uncontested hearing, when the judge approves the separation agreement, and the couple is divorced.

For this sequence of events to occur, two policies must be firmly in place: first, the clients must be committed to full disclosure and cooperation, and second, the lawyers must understand that the posturing that is so prevalent in litigation is left at the door. If you are engaged in a collaborative divorce, please ascertain that all attorneys involved have been trained, and can produce the certificate. I recently participated in an initial four-way meeting in which opposing counsel spent two hours with his arms crossed, threatening court battles if my client didn’t agree with his client’s position on every issue. I was put in the disastrous position of having to play mediator between the two parties, while my colleague refused to budge an inch. Needless to say, this case failed as a collaborative effort.

If you are interested in more information, please visit The Collaborative Divorce Team of CT website, at www.CollaborativeDivorceTeamCT.com

The third option is Mediation. A mediator will conduct a series of discussions which encourage the parties to deal directly with each other. Mediators are not advocates; they are neutral facilitators. Clients in mediation are asked to listen to the other party, in an effort to understand each other’s perspectives and concerns. As in collaborative divorce, full disclosure of assets and other information is required. The goal is to reach an agreement that is based on informed consent. My mediation clients have the proposed agreement reviewed by independent counsel, to ensure that all of the provisions of their separation agreement are fair and sensible for everyone involved. Again, the only time the parties appear in court is for the final uncontested hearing.

Please see the Professional Women’s Alliance of Connecticut website, www.pwa-ct.com for more information on mediation, and collaborative divorce.

Choose Wisely

Most divorce attorneys, if they are experienced, know how a case will conclude after looking at the financial affidavits. Therefore, custody challenges aside, why don’t litigation cases settle within the requisite ninety day waiting period?

First, lawyers don’t make money settling cases.

Second, lawyers don’t make money by farming out work to other professionals. For example: why would you pay $150 an hour for a paralegal to generate your financial information, when for a little more money, a certified financial planner can set you up during, and after your divorce? The answer: lawyers typically pay paralegals anywhere from $25 to $35 an hour, and pocket the difference.

Third, you are riding on a conveyor belt with your attorney’s other clients, and a helpless prisoner to your lawyer’s schedule, especially if s/he is constantly on trial.

And finally, sometimes one of the clients is completely unreasonable. Most lawyers would rather yes a client to death than risk losing him/her to another attorney, and everyone suffers as a result. An obvious sign of this phenomenon is if your attorney is continually filing motions and you are constantly in court, yet your spouse appears to “win” time after time. Take a hint. Your attorney doesn’t care about you, s/he is merely separating you from your money.

Decide which way you want to go, folks. Don’t agree to mediation, and then admonish the mediator for not acting “on your side.” Don’t agree to collaborative divorce, and then demand that your lawyer act like a shark. Shark equals litigation, which equals your money in his/her pocket. Recall Greek mythology. Athena was the goddess of wisdom. Her symbol was the owl, and she carried a sword to cut through ignorance. Go with the wise owl.

Mediation and Collaborative Law vs. Litigation: Hire a Wise Owl, Not a Shark