The court system is structured to set conflicting parties in opposition to each other. By definition, this is adversarial. In theory – justice is attained because the side with the most persuasive argument “wins.”
In practice, however, when it comes to dissolving a marriage this theory of justice is not borne out in experience. Nobody wins. A divorcing couple’s “day in court” usually comes at an enormous price, depleting their financial resources and causing emotional damage. Moreover, in Westchester County, the backlog of cases is so long, couples can wait months – even years – to get their day in court. This delay further exacerbates the stress on the divorcing spouses.
Of course – there are some situations (cases involving domestic violence, for example) where court action is necessary. In most divorce cases, though, there are no clear-cut villains and victims. Just hurt, angry people caught in a system that encourages antagonism and distrust.
Mediation is a viable alternative for some couples who want to avoid an adversarial divorce. There are some caveats to consider about mediation, though. In mediation, both individuals usually represent themselves. Going through the emotional turmoil of a divorce makes it hard for people to be effective representing themselves. For mediation to produce a just result, both parties must have comparable negotiating skills, a relatively equal balance of power, and shared values.
An alternative for many divorcing couples is collaborative divorce. Collaborative is actually a form of mediation developed in 1990 by Minneapolis divorce attorney Stuart Webb.
Collaborative is a kind of hybrid between mediation and a traditional divorce. In collaborative, both divorcing parties have the support and advice of their own separate attorneys throughout the process. But – unlike attorneys in a traditional divorce negotiation, the collaborative attorneys are experts in conflict resolution. Negotiations occur at settlement conferences with both spouses and their attorneys present.
The attorneys use conflict resolution skills to facilitate respectful, interest-based negotiations. Good collaborative lawyers undergo extensive training because collaborative negotiating skills are so different from the skills that adversarial attorneys employ.
The end result is an agreement tailored to the interests of the divorcing couple and their children.
Divorce is never easy, but I believe that collaborative divorce offers the best hope for the vast majority of divorcing couples. From my perspective, after many years of doing divorce litigation in Westchester County, it is the collaborative ex-spouses who “win” in the long term.
(c) 2016 Arnold D. Cribari
