The court system is, by definition, adversarial. The system is set up to pit conflicting parties against each other. Justice is achieved – in theory – because the party with the most persuasive argument “wins.”
When it comes to dissolving a marriage, however, this theory of justice is not borne out in experience. A divorcing couple’s “day in court” usually comes at an enormous price, depleting their financial resources and causing emotional damage. The adversarial system intensifies and prolongs conflict. Even in adversarial divorces settled “out of court,” the negotiations involve intimidation and power, again at excessive cost.
To be sure – 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 trapped in a system that promotes 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 that is emerging for many divorcing couples is collaborative divorce. Collaborative is a form of mediation developed in 1990 by Minneapolis divorce attorney Stuart Webb.
In collaborative, both divorcing parties have the support and advice of their own separate attorneys throughout the process. 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, mediation and collaboration, it is the collaborative ex-spouses who “win” in the long term.
(c) 2013 Arnold D. Cribari
