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Perhaps 50% of couples separate or divorce. Divorce has become a normal reality of life
in America. As with other life transitions, you can decide how you will manage this
major life change.
The end of a marriage or long-term committed relationship affects all of our relationships. Your choices will affect not only yourself, but also your children, your family, and your friends. It is a transition with
important emotional, financial, and legal aspects. Whenever possible,
all aspects — emotional, financial, and legal — should be addressed to support your
long-term goals, your future, and the future of your children.
It used to be that you went to a lawyer, who would tell you about the
law, make legal and factual arguments based on that advice, and
conduct adversarial-style negotiations for you. If those negotiations failed, the lawyer would make
arguments to a judge, who would make the decision.
Although many divorce lawyers may still operate that way, nowadays, there are many more options, so you can pick the divorce process that best suits your situation and preferences.

There are different ways of thinking about the divorce process. Lawyers
often tend to think about divorce in terms of documents, legal
procedures, and what the court might do. Counselors often tend to think about
the divorce process in terms of
emotions, changed relationships, or healing from the divorce transition.
Financial professionals tend to think about divorce in terms of the
long-term financial (including tax) repercussions. Although a Decree of Dissolution of Marriage (the document that officially ends
a marriage) can only be granted by the court, that document can only be
prepared following negotiations or a decision by a judge. Sometimes the
negotiations occur after extensive court involvement; sometimes they
occur in marathon-like adversarial negotiation sessions just before the trial.
It does not have to be that way. The extent of court involvement, and the quality of the
negotiations, is largely up to you — the parties as well as their lawyers.
The same is true for other family law matters, including for non-marital
relationships. If you are thinking about ending your marriage or other relationship,
or if you have another family law matter, the first question to consider is
which process among the options will best suit you and your family. In making your
selection, pay special attention to your long-range interests.
When clients seek advice for divorce, most Seattle-area adversarial (litigation) divorce lawyers advise clients to file
a petition with the court, which literally starts a lawsuit against the other spouse.
Most lawyers then provide good advice to clients, but their primary
tools in achieving results involve adversarial processes, posturing, and positioning. However,
all that process, posturing, and positioning comes at an expense:
despite good intentions, they tend to increase anxiety and conflict,
often unnecessarily.
The vast majority of
divorcing couples do not want a lawsuit or additional acrimony. Most just want a
life transition, advice
on how to go about that transition, and a dignified resolution of the
financial, emotional, and parenting (child custody and child support) issues. Most do not wish to add to the stress during an already-traumatic period, or to have a Judge make the
most important decisions about their
personal lives or their children. Most people do not want to have their most private
affairs and finances be made public, which is what
generally happens when the court is asked to make a decision, such as in a
motion. Additionally, filing a lawsuit
may actually limit or completely eliminate some of the settlement options that may be
available if a court filing is delayed until final agreement is reached.
Even where lawsuits are filed, conventional wisdom
is that about 95% of cases never go to trial and settle.
But those settlements typically occur after expensive and burdensome court procedures have
been employed. Often, by the time of settlement, a Judge or Commissioner has already made
decisions that impact your future, and the settlement occurs after positional
bargaining. There are many good reasons for settling — many more than
litigating. And there are many different ways
to arrive at the almost-inevitable settlement without starting with a
lawsuit and filing motions with the court.
Why do many lawyers tend to automatically recommend an adversarial
process? Due to their training, most lawyers tend to think of the change of a
relationship in legal
terms, and the court, legal rules, and positioning as the primary or best
response to client concerns. American legal process is based on an
adversarial model, on the theory that the truth can be discovered by a
neutral judge or jury if both sides make their most vociferous
arguments. Legal training and experience is training
and experience in laws and adversarial legal procedures, and it creates
good and excellent legal technicians who operate in a complex
environment where a judge is asked to make decisions after hearing
the strongest arguments from both sides. Much of the work that most divorce lawyers
typically perform consists of preparing to go court or to trial — even
though trial may be unlikely — and preparing and arguing court motions
and making legal arguments. Also, since lawyers who litigate tend to see the
worst situations, there is a natural tendency to assume the worst in every case.
Perhaps surprisingly, most lawyers lack any formal training
in mediation or dispute resolution skills, so they tend to always stake out
positions and posture as they have been trained in law school and
adversarial practice. If the only understood process is adversarial argument and
adversarial-style negotiating, the only process that can and will be offered will be
an adversarial process.
Legal training and trial experience does not give lawyers (or judges) the expertise or
ability to address the non-legal aspects of a divorce — the important
emotional and financial components — just as financial or mental health training does not give professionals in those fields the expertise to address the legal issues more than superficially.
Most lawyers and judges have inconsistent exposure to financial and
emotional concepts instead of formal education. Judges are restricted in rendering decisions that fit within boundaries
that the law provides. The law generally does not care much about what may be important
to divorcing couples — it cares about providing an opportunity to
present a case, and rendering a relatively predictable result within societal norms that will appear adequate to other
strangers based on the Judge's interpretation of the facts. The information that can be presented
to determine those facts is limited to what is admissible under the
Rules of Evidence. Each side presents evidence and arguments to “win,”
but there is never more than one “winner.”
The reality is that people and their situations are more complex than
laws and legal rules, and that the financial challenges required a
careful approach. Many people seek to end a marriage or long-term relationship in order to
end or limit conflict, instead of perpetuating it. Most people do not view a
divorce lawsuit, with trial
and court motions, or even preparing for trial, as a pleasant or
positive experience. In fact, everyone is affected by the positions that are taken and presented during an
adversarial process where each spouse tries to make a “best case”
against the other. For many, this process can be distressing and
emotionally damaging, as well as financially burdensome. When lawyers
think about family law cases in legal and adversarial terms and limit the issues to
those defined by law, it is easy for them to ignore the reality that after a
divorce is concluded, former spouses and their children, their families, and their friends will continue to have
a relationship and will always have memories;
a relationship and memories that will be impacted by the adversarial process. Litigation can therefore not only be economically expensive, but costly in terms of its negative effects on relationships and emotional health.
While courts can and do provide binding decisions, it is our opinion
that the traditional litigation model
(which is all that conventional lawyers offer) is often not well-suited to separating or divorcing couples, because
the structure of that model tends to escalate
conflict. At the end, all divorce processes result in binding and
enforceable documents; however, there are different paths to getting
there. We encourage you to think carefully about what
divorce process is right for you, because this could be one the most important decisions you make for your
and your children's futures.
Fortunately, there are many options other than court to resolve disputes, including mediation, informal meetings,
Collaborative
family law, and arbitration. The predominant methods are:
Collaborative Divorce is one of our preferred dispute resolution process,
because we believe it provides the best support for each spouse
while simultaneously focused solely on reaching resolution.
Collaborative Divorce is a process that honors each party's integrity and is suitable for
many cases.
It involves listening to you, working with you to identify the goals
and priorities that are most important to you, and then working towards a
reality-based settlement that is in alignment with your goals and
priorities. A very cost-effective approach is to
utilize the services of a
small, coordinated, and trained team of professionals. Each
team member works in their own area of expertise, so the person with
the highest skill provides the highest benefit in that area in the
most cost-effective manner. The team normally consists of a
Collaboratively-trained lawyer for each party, a neutral financial
specialist, one or two divorce coaches, and a child specialist. At a minimum, all team members
should have formal training in
Collaborative Law and facilitative
mediation, in addition to a substantive background in their own discipline. Often, team members will have substantial additional
training and experience in facilitating divorce
resolutions and working in Collaborative teams. The team provides the tools
and information so the clients can make the best possible decisions for their futures.
Other specialists can be brought in
as needed.
The Collaborative Divorce process usually follows parallel paths.
Most negotiations occur during joint sessions (sometimes called
“four-way” meetings) with the lawyers and their clients.
Other team members may also be present. At the first joint session, all sign
the contract
that creates the framework and safety for the Collaborative process, and under which
all agree to work together to reach resolution without going to
court. The contract
typically requires both parties to fully disclose all relevant information
and limits them from taking advantage of mistakes of the other. The contract also disqualifies the lawyers from going to court on any disputed matter.
That frees up the lawyers to advocate for the clients in a manner that facilitates
settlement and to provide guidance so that the clients can reach a negotiated resolution that
truly meets the clients' needs. Disqualifying the lawyers from court ensures that the
lawyers are fully committed to helping their clients reach a negotiated resolution.
To make the joint sessions cost-effective and productive, there will
usually be homework
between meetings. That homework will often involve working with
individual members of the team. The couple meets
(separately and/or together) with the neutral divorce financial
specialist to work on
the financial part. The couple works with the divorce coaches on
communications styles and skills that may affect
resolution, to gain confidence and skills on communicating what is most important.
The team members all provide information to the others on how to
best facilitate and work with the couple. The lawyers help their clients
analyze issues, advise
their clients concerning the legal and other options, guide their
clients, advocate
for clients within the team, and facilitate the discussions at the
joint sessions. The goal is to provide the expertise and
information to allow the couple to design a future that is as optimal as the
circumstances allow, and to provide needed support to ensure that all important
issues are safely raised and addressed.
The clients, not the lawyers, make the decisions based on what is important to them and their families. The lawyers counsel their clients and make sure that everyone has all necessary
factual and legal information to make informed decisions, but leave the decision-making to their clients
based on what is most important to the clients. The lawyers also make sure that all
legal issues are covered, and prepare all necessary divorce documents. All are required to bargain honestly and in good faith,
and to disclose all material information, while the lawyers assist in leveling any power imbalances in negotiations. Because everyone knows that court is no longer an easy option, there is a much higher commitment to reaching agreement.
The goal in a Collaborative divorce is to reach a durable
resolution. To achieve durability, the settlement decisions must
feel acceptable or understandable tomorrow as well as today.
The Collaborative Divorce model is very different from the litigation model, and the lawyers
need a skill set above that offered in law school or in normal lawyer
on-the-job training. Collaborative Divorce is a different paradigm from
traditional litigation-based lawyering, even for lawyers who
normally settle their divorce cases. Accordingly, this model is
rarely effective unless all team members have received specialized formal
Collaborative Law training and mediation
training,
and preferably interdisciplinary team training. Additionally, experience
and advanced training helps provide attorneys with
a better skill set. Lawyers with training can be found at the websites for
King County Collaborative Law (www.kingcountycollab.org) and the
International Academy of Collaborative Professionals (www.collaborativepractice.com).
Additional information is available on our
Collaborative Divorce
page and from the
ABA Handbook for Clients and the
IACP
Collaborative Practice Knowledge Kit.
This is another valuable process that offers client-directed outcomes.
In a mediation model, the parties approach their case with the goal of seeking resolution
for divorce. Mediation can occur with or without attorneys present, and can have different formats and approaches depending on the training and inclination of the mediator and the preferences of the parties.
Generally, both parties will be in the same room together with the
mediator, and usually without attorneys. When successful
(statistically, a majority of the time), the mediation results in a
written divorce agreement and agreed court orders.
“Transformative” mediation is designed to help the parties
have
insights and reach deep resolution.
Transformative mediation is a relatively new development in the
mediation profession, and requires a highly developed and difficult
to acquire skill-set by the mediator. It is practiced by relatively
few mediators, but holds great promise, especially for divorces.
“Facilitative” mediation is the most common type of
mediation,
and uses techniques to facilitate a discussion between the parties with the goal that they will come to a resolution that is right for them, independent of legal rights.
Facilitative mediation is a process that focuses on needs
and interests instead of technical legal rights, and will almost always have the parties together in the same room with the mediator.
Facilitative mediation will often assist parties by having them work on communication and problem-solving skills during the
mediation session.
Mediation is a process that can work very well for many people,
particularly those with less-complicated situations.
“Narrative Mediation” techniques may be used with both facilitative
and transformative mediation. Narrative mediation focuses on modifying
a story, based perhaps on a sharing of information. Because narrative
mediation techniques can resemble some forms of mental health
counseling, narrative mediation is often the preferred technique of
mental health counselors. Narrative techniques are also often employed
by experienced non-counselor facilitative and transformative
mediators.
The primary disadvantage to facilitative, transformative, and
narrative mediation is the limited support provided for clients. The mediator must remain neutral,
generally may not provide legal or other advice, and there may not even
be a requirement that important information be disclosed by the
parties. The meetings are usually face-to-face without support for
parties beyond that which can be provided by the mediator. We recommend that parties consult with their divorce attorney before and after
most mediation sessions to ensure that they will cover all necessary issues, and have information concerning legal rights.
Mediation almost always means that one or both sides voluntarily surrender some
actual or perceived legal rights in the pursuit of what is most
important. Doing so will
almost always be necessary to settle any case, but it is important to know what those rights may be,
in case they make a difference.
Mediation
may not be appropriate where there is a significant imbalance in negotiating power, such as in cases of physical or emotional abuse, or if one of the parties feels intimidated by the other.
Other processes, such as Collaborative Divorce, may be better suited to
addressing significant power imbalances. If you are in such a situation but are considering mediation, it will be important to communicate your concerns to the mediator
as soon as possible.
Because of their lack of training in dispute resolution other
than court procedures, many lawyers are not very familiar with the facilitative mediation model,
and even fewer are knowledgeable about transformative or narrative
mediation.
When lawyers talk about “mediation,” they will usually be referring to
an evaluative settlement conference where and adversarial methods are used, because that is the
model of “mediation” that many lawyers use to settle their cases. At settlement conferences, lawyers
typically try to demonstrate how their evidence
and legal theories are better than the other's, thereby trying to sway the
Settlement Master (usually called a “mediator”) towards their position. For that reason, settlement conferences are usually deployed only after preparing for litigation, because it can be difficult to make legal arguments and show evidence without that
type of preparation. Sometimes, this style is also referred to as
power-based or positional bargaining. In our view and experience,
the settlement conference process can be highly adversarial,
and, unlike true mediation, is part of adversarial legal
representation with all its disadvantages for family law matters (see below).
Settlement conferences, or “evaluative” mediation, is
the model most commonly practiced by lawyer-mediators
in the Seattle area, where the mediator shares his/her perspective of how the court might view the legal
and factual issues in the divorce, and will try to forge agreement based on the
settlement conference master's views concerning the law
and the facts. Those lawyer-mediators who are trained in both
facilitative and evaluative models may use various hybrid approaches
to help the parties reach agreement.
This is the “traditional” lawyer model where the court may be involved in many phases of the
divorce proceeding.
When both parties retain divorce lawyers who are
settlement-oriented, it may be possible to reach a divorce settlement based on negotiation,
usually using ad hoc methods and without involving the courts.
This method of representation is sometimes referred to as “cooperative law”
or “cooperative divorce,” although there is no generally
understood definition for either term. There are a number of excellent attorneys
whose personalities lend themselves to practice in this style. (For
information on selecting attorneys, click
HERE.)
When even one party or one lawyer is not settlement-oriented,
the likelihood of keeping conflict contained is significantly
diminished. In those situations, court-based procedures are generally used and the court
may be
involved -- in some cases quite extensively. In its essence, the litigation
and adversarial representation model is oriented to allow
a judge (or other judicial officer, such as a court commissioner) to make decisions after each party presents his/her case and tries to persuade the court,
or to persuade the other party to capitulate on the same grounds. When a divorce case settles
after using court-based procedures, it is usually based on similar adversarial criteria that a court would use, often after
preparing for trial, and generally after each side makes arguments to
“bolster” their own positions and weaken the other's. The
assumptions in this model include that the spouses are not
well-intentioned and need to be pushed to arrive at any outcome. There are formalized and expensive procedures for “discovering” relevant information (exchanging information),
which are often onerous, unpleasant, and expensive.
Since perhaps 95% of litigated divorce cases actually do not go to trial, most cases that follow the litigation model are settled. Usually, this occurs at a settlement conference
(often referred to by Seattle-area divorce attorneys as “mediation”) after the case has been prepared for trial. At the settlement conference, the lawyers will present the same type of information that would be presented at trial to a neutral third party. The neutral will generally be an experienced lawyer, a retired judge, or a sitting judge who will not hear the case. The third party will then try to persuade both sides to compromise,
often based on that third party's view of the arguments of the lawyer and the law.
Many divorce lawyers and settlement conference masters deem a
settlement conference successful when a settlement has both parties feeling
equally unhappy. Most of the time, this process does result in a settlement, defined
as an agreement that results in the cessation of the current legal
proceeding. When most lawyers refer to
“mediation”, they are usually referring to these types of settlement conferences,
rather than the type of mediation described above.
The primary disadvantages with settlement conferences are that
they usually occur after parties have become entrenched in their
positions, and decisions are generally made on the basis of the strength of
legal positions rather than on
what may really be the underlying issue or what may be most important to the parties and their futures.
Not uncommonly, lawyers and parties take extreme starting positions at
settlement conferences, knowing that they will need to compromise. Generally, both
sides are pushed to compromise from their positions, with the result
that both may feel resentment. Settlement
conferences are often long (generally scheduled to last 4 to 8
hours or longer), and can resemble wars of attrition, where decisions are
made during periods of stress and fatigue, causing ill-considered capitulations rather than outcomes that
can actually work. The process tends to be expensive and
inefficient because the parties are usually in separate rooms and
cannot talk to each other. Because the emotional
component inherent conflict is rarely addressed, a sizable number of settlements that result from
settlement conferences tend to be relatively short-lived; this is
because resentful
people tend to be reluctant to comply with bad decisions they
were pushed into when they were fatigued. Post-divorce legal proceedings, such as enforcement actions or lawsuits to modify divorce settlements, are
therefore common.
This model is likely best suited for
high-conflict divorces, where there is and can be little trust between the parties, where there has been
significant abuse that cannot be otherwise abated, where one or both parties is focused on revenge instead of working towards a mutually beneficial outcome,
where one or both of the parties is acting in bad faith, or where
there is other counterproductive behavior. The primary advantage is that a decision will be made
or a settlement reached when backed against a wall. There are cases
where that is a very significant benefit. The primary disadvantages of
this process are that the decision/divorce settlement comes
with additional upset and acrimony, financial expense, the surrender of self-determination
due to the inherent structure of the process, and damaged
relationships. This is also the least private method of resolving
a divorce, as
decisions on motions must be based on documents that are in the case file and become public records,
and trials are public. In many counties, case files are now electronic and may be or become available on the Internet.
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COLLABORATIVE
DIVORCE
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FACILITATIVE OR TRANSFORMATIVE MEDIATION
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ADVERSARIAL SETTLEMENT/LAWYER NEGOTIATION
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LITIGATION
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Basis for Decisions
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The interests and concerns of the participants, with full legal
support
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The
interests and concerns of the participants
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Legal
framework based on local
law, court rules, client/lawyer positions, settlement
master's (mediator's) perspective
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Legal
framework based on local law, court rules, client/lawyer positions,
Judge’s perspective
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Goal and Measure of
Success
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Meeting
reasonable needs and interests of all parties
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Meeting
reasonable needs and interests of all parties
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Biggest
possible measurable outcome for self (before direct and indirect costs)
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Biggest
possible measurable outcome for self (before direct and indirect costs)
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Issues That May Be
Addressed
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Any
issue that concerns an interest of yours
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Any
issue that concerns an interest of yours
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Only
issues that fit within the legal framework
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Only
issues that fit within the legal framework
and for which there is evidence
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Role of Lawyers
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Manage
conflict, and facilitate and guide negotiations; advocate and counsel
towards settlement; identify information for exchange; complete legal formalities;
full legal, financial, and emotional support with a professional
team.
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Usually not
integrated in the process. Optional independent
advice and review of mediated agreement; complete formalities; rarely
participate in negotiations.
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Similar to litigation: Prepare
for trial; bring motions; obtain evidence and shape arguments; advise
client about law, settlement, and what is considered relevant under the law; conduct negotiations,
usually with adversarial arguments; complete legal
formalities.
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Prepare
for trial; bring motions; obtain evidence and shape arguments; advise
client about law; present evidence to court; advocate in post-trial
phase; complete legal formalities
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Who Makes the Final
Decision?
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You
and your spouse/partner
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You
and your spouse/partner
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Clients
and lawyers
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Judge
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Estimated average
time*
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2-8
months*
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2-8
months*
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7-11
months*
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11-14
months
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Estimated average
cost**
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Moderate
–
likely less than litigation-based settlement
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Low to Moderate
– likely quite a bit less than litigation-based settlement
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Expensive
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Very
expensive (can easily be $50,000 to $100,000 or more per side)
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Estimated
likelihood of post-agreement litigation of subsequent issues
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Very
low. The team helps ensure that the financial, emotional, and
legal aspects are addressed to the extent possible.
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Low
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Moderate
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High
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* A
very rough estimate, assuming relatively uncomplicated facts and issues,
and reasonably cooperative and rational clients who are both committed
to efficient settlement. Your own case could take substantially shorter
or longer.
** Your cost will be directly related to the number of events and steps
that are necessary in your particular case, and could be substantially
more or less than this rough average.
Every case is unique. You should not assume that the estimated average
time or cost of your chosen dispute resolution process will resemble
these estimates.
One of the advantages of living in the Seattle area is that there are
many divorce lawyers and other professionals who have different training
and skills, including advanced skills in particular processes. That means that you and your spouse
can choose the divorce
process that best fits your personalities and situation. The Divorce Process
Collaborative Divorce
Divorce Mediation
Litigation, Adversarial Negotiation, and Conventional Representation
Overview Comparison Chart of Divorce Processes
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