Almost no one getting divorced seeks to add an exhausting court battle on top of the emotional and financial turmoil that divorce entails. Instead, most seek a path to reach agreements and make their own important decisions about their futures. They recognize that court gives them no control over the most important decisions for their future (to say nothing of the emotional and financial damage from gearing up for a court battle).
Most people also realize that the outlook, skills, and advice of conventional divorce lawyers is usually litigation-oriented. Conventional divorce lawyers cannot help but be affected by their daily experiences in the adversarial legal system. The result is predictable. They imagine conflict where it does not exist, and see court as an acceptable answer for disagreements. Even negotiations become adversarial. That is exactly what most people seeking divorce do not want—most want to avoid a court battle and its close analogues, such as a settlement conference, arbitration, and adversarial negotiation.
Facilitative Mediation and Collaborative Divorce: Alternatives to Adversarial Divorce
Fortunately, there are alternatives that provide the information and structure to help you and your spouse make your own decisions about your futures while keeping discussions on track. The two main alternatives are: (1) facilitative divorce mediation and (2) Collaborative Divorce. Both are available in the Seattle area. Facilitative Mediation and Collaborative Divorce are different processes that share many core attributes. These include:
- Both processes are designed to help you and your spouse reach agreement. Everyone focuses on that overriding goal. You don’t waste any resources or effort on engaging in litigation-focused procedures and distractions.
- Because it’s not possible to agree to much without communicating, both processes involve discussions to work through the questions. Everyone gains a better understanding about what’s important, allowing you to make better decisions that can be acceptable to all.
- Both processes have ground rules to help ensure the process is safe for all and has integrity. Groundrules include confidentiality and assurances that all important information is exchanged.
- In both processes, the professionals help keep the discussions on track, and provide helpful information about the impact of different options, so you can consider them in your decision making.
- Both have a high success rate in reaching agreements.
How to Choose Between Two Good Approaches for Divorce
With these attributes in common, how do people choose which process is best for them? Here are some of the differences:
In Collaborative Divorce, you and your spouse each work with a trained Collaborative lawyer, whose job it is to help you prepare for and participate in the discussions. Because each Collaborative lawyer is expected to work with his/her client, that lawyer can provide individualized support when helpful. This can be especially beneficial if one or both spouses needs extra education or coaching, such as if one or both carry much fear, there are notable power imbalances, or there is a need of additional information or explanation to process information. The advantages of working with Collaborative lawyers also come with some risks, including a risk of incompatibilities between the lawyers’ approaches and a risk of becoming too aligned with the client. (These risks can be significantly reduced by selecting experienced Collaborative lawyers who work well together.) The Collaborative lawyers can handle all the legal aspects of the divorce—preparing the agreement and addressing the technicalities so the court will make the divorce official.
In Facilitative Mediation, you both work with a neutral mediator who may or may not be trained as a lawyer; lawyers are rarely present or necessary. A neutral mediator can provide some level of individualized support, but must constantly monitor whether his/her support creates a risk of alignment, or a perception of alignment. Mediators do not need to coordinate with other professionals, which eliminates some of the challenges of teamwork that Collaborative lawyers may face. If you wish to have your mediated agreement professionally prepared and the court filing professionally handled (highly recommended), you will need to hire a lawyer for those tasks, because in Washington it’s been ruled ethically impermissible for a mediator to do those tasks.
With Collaborative Divorce, it’s routine to include other qualified professionals to enhance the quality of the process. These professionals are a neutral financial specialist, a divorce coach, and a child specialist. Each is trained in the Collaborative Divorce process, and allows subject matter specialists to add information to help you make sound decisions, and to co-facilitate the discussions thereby increasing the likelihood of success. The added benefit is particularly notable when the financial or parenting questions are complex, or the emotions are strong. In mediations, including these specialists is much less common.
The good news: both Facilitative Mediation and Collaborative Divorce focus on working together to address the questions, instead of assuming that it has to be adversarial. And they both work well.