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Divorce Mediation and Collaborative Law - Sibling Rivals, or Just Siblings
Come gather 'round people, wherever you roam, and admit that the waters around you have grown...For the times they are a-changin'. - Bob Dylan

If a paradigm is a way of looking at matters, and a paradigm shift is a change in how we approach a problem, over the last decade, there has been a paradigm shift in family law. Increasingly, family lawyers and litigants have been looking to alternative dispute resolution to explore settlement options and negotiate agreements more efficiently and effectively, with the assistance of a neutral third party (or parties).

As a lawyer-trained full-time family and divorce mediator, I see the flourishing of my profession and its process (mediation) as strong evidence of such a paradigm shift in the community of divorcing folks and separating parents. Recently, national Sunday newspaper Parade Magazine published a single page article ("A Saner Way to Say Goodbye") on the benefits of divorce mediation. The same weekend, in a series on contemporary Colorado divorce, Denver, Colorado newspaper The Rocky Mountain News described the efforts of divorce mediators and divorce financial planners to ease divorce challenges as well. Our phones didn't stop ringing for days.

If mediation is the oldest child of this paradigm shift, then collaborative law is its younger, but now kicking and screaming infant sibling.

How are these processes similar? How do they differ? What skills serve practitioners in both disciplines well? What talents lend themselves more to one of these ADR alternatives? The following are some brief musings, again considered in the context of a divorce or other family or parenting dispute.

Shared Aspirations of Divorce Mediation and Collaborative Law

Both divorce mediation and collaborative law share the goal of illuminating and clarifying the issues in a dispute and addressing the parties' real interests, not perceived positions, with respect to these issues.

Both divorce mediation and collaborative law advocate education of the parties, and their empowerment in a divorce or family conflict to learn and grow from the conflict resolution process. This can mean, of course, education as to parenting concerns and communication skills, as well as financial matters and issues.

Both divorce mediation and collaborative law understand and acknowledge family conflict and divorce as time of great fear and distrust. Both processes seek to protect the dignity of both parties, minimize hurt and promote understanding of the other, especially where a continued relationship is desired or desirable (as for example, but not limited to, parties with children).

Both divorce mediation and collaborative law seek to prevent a further deterioration of the family system and the quality of communication between divorcing parties.

Needless to say, these are hugely important aspirations shared by divorce mediation and collaborative law.

Mediation's Limitations in Divorce

Although sometimes now required as a prerequisite of court hearings, divorce mediation can often be avoided by counsel adverse to it in a particular case (of course, mediation may be inappropriate in some divorce or family law cases). Further, when issues are challenging or tensions run high, the divorce mediation process, once begun, can always be abandoned without substantial commitment or effort by either party.

Moreover, given their role as a "neutral," divorce mediators cannot advocate for a weaker party with less power, influence, intelligence or knowledge (although good mediators seek to find appropriate process mechanisms to minimize such power imbalances). In such cases, mediation may sometimes fall short of its goal of assisting parties to knowledgeably determine their own post-divorce parenting and financial plan.

Further, in cases presenting highly complex legal concerns, divorce mediators (even very experienced lawyer-trained divorce mediators) may lack the substantive knowledge to ask the right questions and assist the parties in their considering workable options. I've recently encountered several such cases with exotic business division structuring, and extra-jurisdictional procedure problem-solving. (In such cases, of course, the parties can bring into the mediation a consultant to offer insights as to issues and options with respect to these complex concerns).

The same may be true with cases presenting highly complex parenting issues (for example, cases with unusual mental disorders or syndromes), where even very experienced mental health-trained mediators may lack the requisite expertise to facilitate a particular divorce mediation. (Again, a consultant's assistance may make great sense, and ameliorate this limitation.)

Collaborative Law's Limitations in Divorce

As more of a group process involving the trained assistance of the collaborative lawyers and other collaborative professionals, collaborative law necessarily involves some limitations in the parties' learning to communicate directly with each other and practice their own process skills to find their own solutions. This, of course, is more of a limitation where a relationship continues (as in parenting).

My experience also teaches me that there is some special benefit to parties in caucusing with a mediator without any other third party or parties present, as might be more commonly expected in divorce mediation, than in collaborative law. This is the notion of "intimacy." As mediator (and collaborative lawyer Chip Rose) has described it:

Clients come into the divorce and mediation process feeling exposed and vulnerable. A sense of intimacy, as created by a skilled mediator, engenders trust and confidence in the professional, reducing a client's resistance to the mediator's suggestions for effective behavior. The client has an opportunity to share perspectives and emotions that, if unexpressed, may become impasse-producing icebergs lurking dangerously below the surface of the mediation process. The intimacy of the caucus creates an opportunity for the mediator to demonstrate care and concern for each client, without having to so vigilantly engage in balancing strategies to reassure the other party that impartiality has been maintained.

Almost always, of course, collaborative law is more expensive than mediation, since by definition, at least one additional professional's fees must be paid.

Shared Competencies of Effective Divorce Mediators and Collaborative Lawyers

Effective divorce mediators and collaborative lawyers innately possess (or have developed) an ease at being with people in a way that promotes trust, engenders meaningful and rich dialogue, and encourages creative problem-solving.

Effective divorce mediators and collaborative lawyers are comfortable in listening in an active and reflective manner. Listening in divorce and family mediation or collaborative law requires:

  • attentive searching for factual content (including comfort with asking clarifying questions and sufficient substantive expertise to recognize which questions are important in examining options),
  • assessing the parties' underlying and often not-expressed interests, and
  • acknowledging of emotive and feeling dimensions of the conflict. (Sometimes, this must be done in a quite subtle or non-overt manner. Short of the pathologically disturbed, all parties have feelings and emotional needs at play. However, many parties stereotypically, especially men are unaware of, or even hostile to an overt consideration of, those feelings or needs).

Skill in comfortably and efficiently assessing the essential features of any divorce family conflict (factual and emotional), and an ease in reflecting this understanding back to the speakers is critical to success both as a mediator and as a collaborative law practitioner.

Many authorities have written on the powerful skill of framing a "story" (or mini-story!) that is rich enough to portray both parties in a divorce or parenting dispute as legitimate and emphasizing the positive aspects of their intentions. Good divorce mediators and collaborative lawyers thus also recognize the importance of speaking about the parties' history in a way inviting participation and not marginalizing one (or both) of the parties.

Differing Competencies of Effective Divorce Mediators and Collaborative Lawyers

Collaborative lawyers are, by definition, persons with legal training. Legal training has its benefits and arguably detriments to assisting couples pass through divorce or a parenting conflict, in a positive and efficient way.

Competent divorce mediators are by definition, persons with mediation training. Mediation training has its benefits and arguably limitations to assisting couples in this passage as well.

Effective collaborative lawyers have an ease in discussing interpretations of law in neutral and expansive terms (a not necessarily easy shift from their training in the zealous advocacy of a single clients' position). In many cases, their facility in neutrally exploring expected outcomes based on law and legal (and courtroom) experience powerfully motivates divorcing parties to resolve cases short of destructive and protracted litigation.

In contrast, effective divorce mediators may have a greater comfort in redirecting the emphasis away from parties' rights and the legal framework for family dispute resolution, and toward an interests-based discussion − an approach valued more consistently in mediation training than in legal training. In many cases, this refocus of the discussion from a rights-based analysis may also powerfully diffuse family conflict with great efficiency.

The Changin' Times in Dispute Resolution
and the Import of the Emergence of Collaborative Law

As a dispute resolution professional, I find the present "changin' times" in our broader profession very interesting. Mediator Robert Benjamin describes the "style wars" being waged within an ADR profession with sometimes unacknowledged jealousies.

There remains antagonism between mediators of varying professions of origin; mediators who are attorneys or counselors regularly challenge each other's expertise to practice in certain kinds of matters. And, as for styles, "collaborative law" looks very much like efforts by attorneys to co-opt the practice skills of mediation and keep disputes within the legal frame. Certainly, the battles between evaluative and facilitative approaches to mediation continue to seethe under the surface. In the legal realm, mediators have concocted an approach that differs little from a case settlement conference - that is decidedly evaluative and outcome-focused. In response, "transformative" mediators demand adherence to the orthodoxy of being facilitative in their process and eschew even the mention of outcome.

But perhaps of greater importance to professionals concerned with the humanization of divorce, the promotion of peacemaking and the well-being of children is the remarkable change in our culture at large. Of greater importance than the skirmishes and debate regarding differing family dispute resolution processes is the emerging understanding that collaborative lawyers and family mediators share many common aspirations and goals, and that effective practitioners in each discipline possess common skills and competencies, yet maintain some different biases.

The times ARE a-changin.'

Divorcing parties and conflicted families are being heard. Cracks in the old system for resolving family law disputes are increasingly exposed. A paradigm shift is afoot. The birth and now growth of family mediation's sibling, collaborative law, is powerful evidence of that truth.

For this reason, I see collaborative law much more as a sibling to divorce mediation, than a sibling rival. All professionals involved in divorce or family dispute resolution should herald its arrival.

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