but for a variety of reasons, mediation can fail, and couples end up hiring attorneys to handle their divorce.
A common complaint is that the mediator is “ineffective” because she or he does not move the case along or push the other side to settle. Remember, the mediator is neutral and does not represent you or your spouse. Also, the mediator is looking for ways to get you and your spouse to compromise. Plus, since mediators do not go to court, if your spouse stalls as a tactic (which unfortunately happens often), there are no “teeth” to compel compliance or move things along. Many people find mediation to be frustrating, time-consuming, and expensive, and they end up hiring a lawyer when their divorce drags on indefinitely because their spouse refuses to settle and the mediator is powerless.
The Collaborative Approach
The collaborative approach involves a team approach where the parties agree to cooperate with one or more attorneys and advisers (such as accountants, appraisers, child-custody professionals, and therapists) to resolve their differences and develop positive communication skills for future contact. Through the collaborative process, the parties reach voluntary agreements on all of the issues in their case without court hearings or trial. This can minimize the impact of conflict on you and your children, and it provides greater support than mediation, since both you and your spouse are represented by attorneys and a team of other professionals during the process. If you and your spouse are able to work collaboratively, you can create personal solutions that are right for your family, maintain decision-making with you and your spouse, and preserve your privacy.
INSIDER TIP
You cannot use your collaborative attorney to go to court if the collaborative process fails. Collaborative attorneys sign an agreement that they will not go to court. If the collaborative process does not work out, you have to hire a new attorney. If your spouse is not a good candidate for collaboration, it could end up being more expensive to achieve your desired result.
This approach is desirable if you have children, if you place a high priority on continued positive communication with your spouse following the divorce, and if the marital assets can be easily accounted for. However, it can be costly because there are more professionals involved, and if one spouse wants to drag things out or is unwilling to collaborate, your case can get bogged down, since there are no enforceable deadlines (unlike traditional litigation). If your spouse is untrustworthy and is not forthcoming regarding his income or assets, collaboration can be a trap.
If you do not have minor children or you prefer less contact with your spouse, then the added expense and effort of collaboration may not be worth it. Like mediation, the process is voluntary and nonbinding. So if you are unhappy at any point in the process, you can hire an attorney (who must be different from your collaborative attorney).
Like mediation, the collaborative process can be abused because the lawyers sign an agreement that they will not go to court. A husband who is hiding assets or minimizing income may use the collaborative process to his advantage. The lawyers cannot take discovery to uncover the hidden assets or establish a spouse’s earning capacity and must rely upon whatever the parties voluntarily provide regarding their finances.
The following example illustrates the problems that can arise when one spouse is hiding assets and the parties are “collaborating.” I was once asked to represent a wife, Charlene, when her collaborative case fell apart after six years. During this time, Charlene used much of her inherited savings to support herself and the children, while her husband, Richard, was transferring and hiding millions of dollars from the family businesses to offshore accounts. Throughout this period, Charlene and Richard were meeting regularly with their “collaborative” team of lawyers, accountants, and therapists, who were presumably helping them to arrive at an acceptable settlement while “keeping the peace.” At the end of six years, when Charlene was about to run out of her inherited savings, Richard and his attorney tried to force her to accept a settlement that was a tiny fraction of what she was entitled to. Because they were in the “collaborative” process, Charlene’s attorney could not take Richard’s deposition or subpoena bank records to uncover the fraud. Charlene had to hire me and a new forensic accountant to get what she was entitled to.
Understand that the “collaborative” process is only as trustworthy as the people who are using it and that the lawyers are limited in what they can do to protect you because their hands are tied.
Traditional Litigation
Traditional litigation gets a bad rap for a variety of reasons. It can be costly, and litigation is uncertain. A virtual stranger — the judge — makes binding decisions on life-changing matters concerning you and your children. Sadly, the process can be abused by certain “professionals” who earn their living billing by the hour and who benefit by dragging out your case. Some take unnecessary actions to pad their bill.
However, many divorces are simply not amenable to mediation or the collaborative approach — if, for example, one of the parties suffers from a mental disorder or addiction, is completely unwilling to be reasonable, or is stalling as a tactic. In these cases, traditional litigation is the answer. If that applies to you, it is imperative that you find a skilled and trustworthy advocate to represent you.
A good divorce attorney will go to court only when necessary and will maneuver the case into settlement mode as soon as possible. Hiring a lawyer does not mean that you will go to trial, but you have that option available in the event your spouse is completely unreasonable. Court-imposed deadlines will also move your case along, which is particularly advantageous if your spouse is delaying on purpose or you are concerned that he is dissipating assets.
When I represent a client in traditional litigation, I am looking out for her best interests and simultaneously looking for an opportunity to move the case into settlement mode — often using a retired judge to act as a mediator. This approach blends the best attributes of mediation and collaboration, but affords my client strong representation and protection of her rights. If you go down the traditional litigation path, these are the attributes you want. Below and in chapter 2, I provide the secrets for finding a winning attorney.
Begin building your divorce team. Whether you mediate, collaborate, or go the traditional route, in most cases you will want to hire a good lawyer to advise you along the way. You will benefit from employing a team approach to your divorce. Think of it this way: When you married, you probably had a wedding planner, florist, caterer, hairdresser, DJ, and photographer. Your team made certain that everything came together according to your wishes on your wedding day.
Likewise, if you have assets and/or children, you will need a trusted team working together to obtain what you want. Your team may include an attorney, financial adviser, tax adviser (probably not the same adviser you currently use for your family), and therapist (for both you and your children). You do not need to get all these professionals on board immediately, but it is smart to begin taking steps to locate the right professionals.
The risks of not doing this right away are huge. I had a client, Patricia, who had been married for thirty-four years. Patricia, her husband, and their four children were the picture of the “perfect” family. Her husband was a successful businessman who was also a leader in their church. During their marriage, Patricia focused on raising the family and doing charitable work, while her husband built his multimillion-dollar real estate business. Their marriage began to crumble when the children left home for college and Patricia realized that she was unfulfilled.
Patricia trusted her husband to divide everything up fairly, so she didn’t retain a lawyer. Because he was a devout church leader and had always handled the finances, she assumed that he would do the right thing and she would be taken care of. She ended up in my office after she signed a marital settlement