The Smart Divorce® Weblog

You have choices and options to arrive at your separation agreement. A smart divorce means doing the research and gaining the understanding of these options so that you are making your decisions with confidence.

Do it yourself

This is the situation when separating couples to try reach an agreement without legal counsel. When I conducted my research for my book, The Smart Divorce, not one lawyer recommended this option. They didn’t support this option because they felt it is imperative that people understand their rights in terms of what they are entitled to and financial responsibilities and obligations with regard to spousal support and child support. For example, you could be giving away or not getting your most important assets; you might not be doing what is in the family’s best interest. If you do decide to go this route, you should at least consult with a lawyer first to get independent legal advice to understand your rights.

Negotiation

Think of negotiation as taking your wish list regarding how you divide your assets and what your parenting responsibilities should be and use this list as a starting point for what you end up with. It’s me and my lawyer versus you and your lawyer finding a compromise– all with the goal of reaching an acceptable middle ground. It’s me versus you with our lawyers beside us. Usually, we’re both trying to get as much as possible.

Now if you have to go to court, negotiation takes place too. The purpose of negotiation here is using it to avoid trial. When people file lawsuits there’s an expectation that there will be some maneuvering and bargaining and eventually a settlement will occur rather than full blown court with trial. The typical pattern is to use the threat of trial to get people to bargain and stay out of court.

Mediation

Mediation is using a mediator – It’s using the help of a neutral third party to help the divorcing couple reach a separation agreement together. A mediator is the problem solver helping the couple arrive at an agreement by helping them communicate with each other– a good mediator will help the couple identify issues and explore choices that they hadn’t thought of on their own.

Another benefit is that for some couples mediation is more cost effective because they are splitting the cost of a mediator, rather than paying hours separately with their individual lawyers. Many lawyers and clients like it because it gives both sides more control over the final outcome, but it does require that you be willing to work together, there is honesty and full disclosure about the finances.

A mediator can be a lawyer or a mental health professional. Most lawyers prefer that when you are mediating financial matters that your mediator be a lawyer.

Collaborative family law

The concept is that the lawyers work strictly toward settlement. Clients and their lawyers sign a contract in which they agree not to go to court, and to provide full and complete financial disclosure. The purpose of collaborative law is to create an environment in which the separating couple feels safe, in which both parties feel that they are able to make informed decisions about their own destinies, and in which they can work constructively despite their fears, anger, and feelings of revenge.

The lawyers fulfill their traditional role of advising their own clients on how the law applies to their individual situations. But they also help their clients to reframe their thinking–to develop goals as opposed to taking positions, and to make good and ethical choices. If either client wishes to end the collaborative process and go to court, both lawyers and other members of their firms must remove themselves from the case.

Arbitration

Arbitration is much like litigation in that you go to court in a sense, but it is outside of a courtroom. It is a private process. The divorcing spouses together with their lawyers pick a decision maker, who is usually a retired judge or senior lawyer with family law experience.

What happens in arbitration is that the decision being debated between the couple is imposed by the arbitrator. Unlike mediation, no one helps the couple come to an agreement; the decision is made for them. And, usually, if you don’t like the decision, it can’t be appealed which means, you can’t argue it out again for the decision maker to change his or her mind.

Litigation

I’m not saving the best for last; this is last because litigation is usually the option of last resort. Going to court. It’s emotionally difficult and financially, very expensive.

Who remembers Perry Mason?– when you’re up on the stand and your lawyer is asking lots of questions and all of a sudden there is this aha moment by the judge and yes, it’s determined you are right and the other side is wrong and justice is served. It’s his word against hers and the battle starts from there. The lawyers try to poke holes in your persona showing that you are unfit. That’s why it is called the adversarial process. There is one winner, and one loser. It’s not a win – win situation. It’s a war and there are distinct sides.

Like arbitration, the decision is made by a third party. Unlike arbitration, you can’t pick your decision maker and the judge doesn’t always have family law experience. Another difference is that arbitration is private, going to court is public. Being public means that there is a public record of the dispute.

For a more comprehensive analysis of the dispute resolutions readThe Smart Divorce: Proven Strategies and Valuable Advice from 100 Top Divorce Lawyers, Financial Advisers Counselors and Other Experts (available wherever books are sold)