What should I do? Who should I see? Where do I go? Should I see the lawyer my sister recommended? Or contact the mediator my friend saw? Who would my therapist recommend? What will a Google search turn up?
And so you walk in a door.
It may be only much later that you realize that there were other doors you could have opened, and how important it was to have chosen the right door at the very start.
Not that long ago, it was easier. There was only one option. You went to a divorce lawyer who led you through the labyrinth of the adversary system. Too often it was expensive, and you felt like you were lost in a foreign country. You came away enemies with your co-parent. But there were no other options.
Today, there are many possible doors to divorce. Yes, the traditional divorce law is still available, and there are traditional lawyers in abundance. But processes such as mediation and collaborative law have arisen in response to people’s dissatisfaction with the adversarial wars. These processes are hardly without conflict, but with the right professionals supporting (not leading) you, they provide people more sophisticated and supportive doors to divorce.
Unfortunately, having to select the right process fit can be challenging when your brain is melting under the stress. But it is important to try. While divorce is difficult in all circumstances, finding a good process fit (and the right professionals) can makes a big difference for you and your family.
Here are a couple generalized tips to get you started.
1. In choosing the best process option, consult with an unbiased professional who will help you regardless of whether he or she retains the case.
Talk to professionals who will truly help you find the right fit for you and your family. Talk with them about the pros and cons of each option individualized for your situation. Beware of professionals who try to sell you on the product they specialize in (and bad-mouth alternatives they don't offer).
An unethical traditional lawyer will want to sell you on traditional law because he or she is not able to provide mediation or collaborative law services; they want your business instead of what’s right for you. A unethical mediator who tries to sell you mediation even when there are clear warning signs against mediation, is not a reliable guide for you. If you smell this type of salesmanship, walk out.
2. If possible, avoid the adversarial system of litigation.
Avoid the adversary system if you can. The traditional family law system should be considered the legal process of last resort. Non-adversarial divorce processes such as mediation and collaborative law are markedly better than litigation for parents and their children.
The adversarial litigation system is too expensive, inefficient, and hostile for most people most of the time. This is not just my opinion based on my experience, but the consensus of experts in law and mental health that study the impact of the adversarial system on families.
That so many families are put through the adversary system today speaks to lack of public awareness (which is changing) and the financial grip that traditional lawyers still have on the marketplace.
I am not, however, arguing that the adversary system be dismantled. There are situations in which it is not possible to avoid it, and there are times where it is the most appropriate fit for you. You should carefully explore all these factors with an unbiased, careful professional.
3. The smart choice is usually to try mediation or collaborative law first.
If you select the adversarial system at the start, settlement of your case will not be your lawyer's first priority. Your lawyer will be focused on preparing your case for trial, just in case it cannot be settled. This will take a long time and be expensive. It is also largely unnecessary, because most cases will settle before trial.
Trying mediation first is a no-brainer if you and your spouse or partner have the capacity to mediate. The benefits of mediation are obvious now. Studies show that people who obtained their divorce through mediation felt far more satisfied, created long-lasting agreements, spent less money, and came out of the divorce process with a better relationship with their co-parent.
The worst that can happen is you will have failed to settle your case. But there is no prejudice to your legal rights; you can still seek a trial and ask a judge to adjudicate the terms of your divorce. In sum, the benefits so greatly outweigh the negatives that it is just smart to try mediation first.
You might instead select the non-adversarial alternative of collaborative law. This will largely depend on whether you want to have a lawyer assist you in non-adversarial negotiations. If you choose collaborative law, you will also be in a group of people (like those choosing mediation) who report much greater satisfaction than people who went through the adversary system.
Your collaborative lawyer will be a settlement specialist who will dispense with uneccessary and inefficient steps toward litigation and focus instead, right from the start, on helping you achieve a fair settlement. The emphasis will be on creating a settlement that reflects the real needs and interests of the parties. As in mediation, if you fail to settle your collaborative law case, your legal rights will not be compromised; you can still have a trial with a litigation lawyer.
In upcoming posts, I will develop in more detail the pros and cons of each of these legal processes.