It’s always a difficult experience when spouses decide to end their marriage. In many cases, they take their hurt feelings and lingering resentments with them into the legal process of divorce. In these cases, every new issue, from property division to child custody, becomes tinged with personal disputes. Oftentimes, the parties in these cases come out of the process embittered and angry with each other.
This can be a terrible experience for anyone, but it is especially difficult when young children are involved. Divorced parents must continue to work together to some extent when sharing physical custody and making important decisions about their children’s upbringing. Long-running conflicts between them can make co-parenting a lot harder. And all this animosity can affect their children, leading to lingering emotional problems and issues with trusting other people.
In some ways, the adversarial nature of our legal system can make divorce worse, and these unhappy results more likely. California law treats divorce in many ways like any civil lawsuit, with each party working against the other, seeking to get the most for themselves at the cost of the other party. Whether the divorce is settled in court or out of court, this adversarial system tends to raise the level of conflict.
Over the years, lawyers and others have developed ways to reduce conflict in divorce and other areas of the law. Their approaches are often categorized under the broad term of alternative dispute resolution. In divorce, the most common form of alternative dispute resolution is mediation.
In mediation, a neutral third party, known as a mediator, facilitates the negotiation between the parties. Each spouse is represented by their own attorney, while the mediator guides the discussion with the idea of reaching agreement. If the parties agree, they sign an agreement to resolve their divorce issues without having to go to court. If they don’t agree on all or part of their issues, they will have to go to court.
Taking things a step further, a practice known as collaborative law approaches divorce in a way that is solely focused on reaching agreement out of court. Some lawyers practicing collaborative law will actually agree to resign if their clients can’t reach agreement without going to court.
Resolving a collaborative divorce is in many ways like resolving any divorce through mediation, but the emphasis on reaching agreement tends to different results.
Mediation and collaborative law can have many advantages over more adversarial approaches, but they are definitely not for everyone. An experienced lawyer can help people to understand the approaches that will work best for their case.