Litigation, mediation or collaboration? What is the best way to make sure that you come as close as you can to getting everything you want in your divorce settlement? Well, that really depends upon what you want. And even when you know what you want, there is no guarantee that there is a direct path to getting it.
You can process the actual legal divorce in two ways. One way is to think of your divorce settlement as the ultimate victory or defeat and use it to structure and launch your new life. The other way is to think about your new life, who you want to be and how you want to proceed, and use that to structure your divorce.
Once you make that decision, the options begin to clarify. If a great settlement is the goal, then absent a spouse willing to help you achieve your goal, you need an advocate charged directly with assisting you to meet your needs.
Typically, this is best achieved through litigation. In this scenario, you each “lawyer up” and let them do the negotiating. You let your lawyer know what you want, your lawyer translates that to your spouse’s lawyer, who then interprets it based on your spouse’s desires, and returns with an offer. The lawyers infuse their knowledge of the law, legal trends, and likelihood of success into the mix. That cycle repeats until either exhaustion, poverty, or satisfaction presents itself and you have an agreement. Or you go to trial where a judge will decide for you.
A second approach allows you to maintain a little more control over the process by using a collaborative forum. In this case, each of you retains an attorney, but all of the back and forth negotiating is done with the four of you in attendance. This way, you can hear the conversations between the attorneys, ensure that your desires are adequately represented, and be a witness to the response of your spouse and the return offer from the other side. Collaboration also takes litigation off the table, so you aren’t hindered from offering creative solutions or “what if” scenarios out of fear that they will resurrect in some contentious battle down the road.
Collaboration can also be a forum where you and your spouse learn to make decisions together, compromising and communicating through them. This is a necessary step as you move from parents to co-parents or from a married relationship to an unmarried one. Collaborating on the current and future needs of you and your children is going to be hard work for some of you, so why not start early and often and be proud of a job well done?
Toward that end, there is a third scenario for creating a financial settlement and parenting plan that bodes quite well for your future lives. Mediation both requires and allows you and your spouse to work together, under the guidance and expertise of a lawyer mediator, to create two new balanced and manageable lives out of what used to be one. No one knows how your life used to look and how you want it to look in the future better than you. Mediation gives you a chance to present, discuss, and debate the best path to defining and meeting as many of your needs as the structure of your life allows.
Whereas collaboration and litigation give you voice through attorneys, mediation encourages development and use of your own voice. A well trained mediator will not allow for decisions to be made until and unless all voices are activated, safe and heard. This means that for some of you, being the loudest voice in the room will no longer ensure victory. For others, actually having a voice and using it to self-advocate will represent the learning of a new and necessary skill.
But with mediation there tends to be concern about the transparency factor. If you are seeking to divorce a crook who is likely to hide money and lie about finances, mediation is not for you. Get a lawyer and a forensic accountant and protect yourself.
If you are someone who had very little to do with the financial structure of the household, or if you are someone who left most parenting decisions to your spouse, then mediation can be powerful. For you, your new role will involve both financial housekeeping, and hands on parenting. Why not learn how it’s done from the person who has been doing it for so long?
Similarly, if you had a relatively equal distribution of financial and parenting responsibilities, then why not capitalize on your ability to work together and continue the trend?
In addition to being cost effective, mediation is a place to level the playing field. Open the books, so to speak, and show each other how you’ve been doing it for years. The choice to make changes to the system is up to you, but at least know the system from which change will evolve. This process of empowerment is hard work, but if you are one that entered divorce with a vision of what you wanted your life to look like, then why not be part of the process. Be an active participant in shaping your future so that when you enter life as a single adult your new roles and responsibilities don’t take you by surprise.
The point is this. By the time most people get to the actual divorce process, there is exhaustion, fear and probably some anger. The tendency for many may be to want to take a step back and let the lawyers do the heavy lifting. There is certainly nothing wrong with choosing to collaborate or litigate. But if you can muster the energy, and have a clear vision of what you want your life, and your relationship with your children, and their relationship with their other parent to be, then maybe mediation is the place to assert that vision.
In this forum, you renegotiate not only the structure of your life, but the role each of you will have in the others. Sometimes sitting in a room across from your spouse while feeling safe with the mediator who has educated you about the process, and is very mindful of your role in it, can be power in and of itself. It can go a long way in ensuring that if you have to make concessions, you are able to do so with control and an understanding of what those concessions mean and where the balance lies. And if you do reach impasse, there is nothing that precludes you from hiring lawyers and pursuing that route for those particular issues.
Ultimately, it is important to remember that one of the three methods is not better than the other. They all exist and they each offer a different path toward the same end. As you embark on single life after potentially many years of marriage, maybe the first step should be to engage in some real soul searching about how you want to enter your new world and what you want it to look like. That vision will likely help you to understand which process works best for you and may even empower you to advocate for your first major decision as an almost single person.
Carrie is a therapist and licensed attorney in Connecticut with a specialization in divorce mediation and parenting plans. She also runs CT Relational Therapy, LLC and holds a Master's Degree from Fairfield University.
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