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In Search of the Kinder and Gentler Divorce: Mediation and Collaborative Divorce vs. Traditional Divorce - Part I

What is the best way to get a divorce? It appears there are more options these days than ever. What used to be called simply "divorce" is now being labeled "traditional divorce" as purportedly new methods of resolving divorce disputes are increasingly being promoted, through marketing efforts which are surfacing throughout the media.

Everywhere I turn, I am reading articles about what advocates tout as alternatives to "traditional divorce." Most of these articles appear to be warmed-over press releases from proponents of the purportedly new methods of divorce, including mediation (which is not really new but which has received a great deal of recent attention in the media), and that latest flavor of the month, which is known as "collaborative law" or "collaborative divorce." Mediation and collaborative law may be the right choice for some divorcing individuals, but they will definitely be the wrong choice for many others.

On December 19, the following article, by Associated Press writer David Crary, appeared everywhere, or at least in two of the many reading spaces I regularly visit, namely, the Worcester Telegram and Gazette - Worcester Telegram & Gazette: Worcester Telegram & Gazette: "Divorce doesn't have to mean going to war in court; Collaborative approach or mediation replacing more costly litigation," By David Crary, Associated Press, December 19, 2007 . This Associated Press article is a great place to start if you want to know something about collaborative law and particularly if you want to know how its champions are promoting it.

To get a more balanced perspective, however, you should also read Caryn Tamber's recent article in the Maryland legal periodical, the Maryland Daily Record, Maryland Daily Record: "Proponents love it, but traditional divorce lawyers see little use for 'collaborative divorce'" by Caryn Tamber, which examines some of the most troubling problems, both practical and ethical, with the collaborative law method, and projects a helpful spotlight on the inflated claims and hype surrounding collaborative law.

"STAY OUT OF COURT!" EVERYBODY SAYS

Most people, including even "traditional" divorce litigators like me, are fond of saying it is best to resolve differences and settle divorces "out of court." Indeed, I think lawyers are the most likely to want to avoid personally ending up in a strange court, just as doctors are perhaps most likely to fear landing in a strange hospital, because lawyers and doctors are most aware of all the things that can and do go wrong in their respective arenas.

Yes, it's true that we should try to stay out of court whenever possible. But what do we mean when we say that? It's not as simple as is often imagined. Divorce is a legal process that, at least to some degree, must be handled in court. At a minimum, there must be approval by the court of the divorce agreement of the parties, after mediation or some other process, whether involving litigation or not, has led to such an agreement. Furthermore, divorce is also a process that almost always requires some form of negotiating, involving compromise and mediation of some sort, and ultimately settlement, whether it is through "traditional divorce" or "collaborative divorce" or "mediation" and whether issues are hotly contested and litigated or not.

It is the rare case on which nothing is agreed upon and everything is determined by a trial. In fact, it is the rare case, even among the hotly litigated ones, that results in any trial at all. However, most divorce cases actually do end up "in court" for at least one or two contested hearings, before final resolution of the divorce is reached by agreement of the parties.

I always ask prospective clients who have come to me if they have attempted family counseling to save their marriage, and if they have attempted mediation or other "outside of court" methods to resolve their marital disputes. Most of them say either that they have indeed already done so, and it was a waste of time and money,or that they have not done so, as it would have been a waste of time and money, or that the other party would not agree to do so.

As my law practice does not offer mediation services, but only "traditional" divorce, I am more likely to encounter people who have the more difficult problems that require some litigation of various issues in court. Most people who come to see me are indeed in that very uncomfortable, unfortunate situation - that is, they will need to attend one or more hearings in court, even though they will most likely never need a full-blown trial.

It is great when people can be mature and "divorce well," but that is not often the case. To understand why, you must simply consider that divorce for most is inherently a deeply personal, painful, and unwelcome disruption. Even "no-fault" divorce is described as an "irretrievable breakdown of the marriage" to use the Massachusetts legal language, as divorce involves the severing of a most important relationship that affects all aspects of a married person's life. Consequently, there is certainly some truth to the cliche "criminal defense lawyers handle bad people on their best behavior, and divorce lawyers handle good people on their worst behavior." (I should know, as in my practice, I handle both criminal defense and family law. But I would actually amend that cliche as follows: Divorce lawyers handle all kinds of people on their worst behavior.)


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