In my 20+ years of practice, I’ve seen many clients come to my office with their lives in a state of crisis. Emotions run high, often a blend of disappointment, anger, hurt, sometimes guilt, and a strong dose of fear for the future.
I’ve observed that divorce runs on at least two tracks — the emotional and the legal — as well as financial and spiritual. You may find yourself riding these “divorce trains” simultaneously, trying to get to a better place.
There are going to be twists and bends in the track, but a competent attorney can help clients avoid jumping tracks and having a major train wreck.
The Emotional Train
After the initial jolt that leads to filing for divorce, clients often want to exact some kind of emotional satisfaction from having their day in court. They want the judge to punish their spouse for bad behavior and have the whole world see how unfairly they’ve been treated. That scenario is largely a fantasy.
In this day and age of no-fault divorce, the philandering of a wandering spouse is immaterial. The judge doesn’t care because this is a no-fault State. The court is only interested in dividing up the marital estate and getting to the next case on the docket.
If children are involved, they will be receiving most of the personal considerations. Being the “wronged party” holds little sway in modern divorce proceedings. Dealing with the emotional train ride is generally better achieved with non-legal professionals like counselors or clergy serving as the conductor.
Waiting at the Legal Train Station
In California, you can be waiting in the metaphorical train station a very long time. In some counties, such as Los Angeles, the dockets are backlogged for months, sometimes years. Continuances can keep pushing the finish line farther and farther down the track.
If you want to truly put the divorce behind you and move on with your life, settling the matter in some fashion out of court is definitely the fast track. In other counties, such as Ventura, you can secure court dates more quickly, however, you still must air your private family matters in a public environment. Also, court is a win-lose proposition.
Which Divorce Train Is Right for You: Court Trial, Mediation, or Collaborative Divorce?
Court Trial is the old steam locomotive of divorce trains. The familiar model of two combative clients, two hard-hitting attorneys going for the jugular, and one wise judge deciding the fate of the warring parties is still on the tracks. But this mode of legal transportation has proven to be time-consuming, emotionally damaging, and extremely expensive.
This train is a streamlined model, designed to pick up speed and get to the destination faster.
Rather than having a judge decide the fate of the parties, a mediator works with both clients to elicit what each really wants and facilitates and evaluates and brainstorms in an effort to negotiate a settlement.
Clients need to develop a give-and-take attitude, rather than a winner-take-all mentality. Ideally, mediation leads to an out-of-court settlement.
Features of Mediation
- Keeping control–The judge is the engineer of a divorce trial. All power rests in his or her authority. Disposition of marital property, alimony, child custody and visitation is in the power of a stranger. With mediation, the parties can keep some control over their future. They negotiate the issues vital to their future—assets, debts, and parenting. The mediator serves as the voice of reason attempting to bring win/win solutions to the issues at hand. Rather than feeling like passengers on a runaway train, the parties can have a sense of being at the controls.
- Keeping privacy—Matters of mediation do not become public record as they do in a court trial. Signed agreements are put in place before the sessions begin, laying out the terms of confidentiality. If you don’t want the whole world knowing your private business, you can draw the curtains through the privacy of mediation.
- Cost Effective—You can have first class legal representation without paying exorbitant fees through the efficient time management of mediation. Money previously shoveled into the old court trial locomotive by depositions, discovery methods and trial preparation can be saved for your future. While experts may still be needed for appraisals or financial recommendation, the costs should still be considerably less in the streamlined mediation process. You and your spouse can agree to pay for one expert instead of the two opposing experts typically required in litigation. Each party in mediation is encouraged to retain a mediation attorney to explain the law and review any proposed agreement for fairness. Hiring a mediation attorney for this limited purpose costs much less than retaining an attorney for a traditional divorce.
- Non-adversarial. In a traditional divorce, each spouse hires a lawyer whose job is to fight as hard as possible to get the client what he or she wants. This arrangement pits the spouses against each other, reduces communication, increases misunderstandings, and intensifies the conflict. In mediation, the spouses are not adversaries. Direct communication is facilitated by the mediator. The parties reach a negotiated settlement into which each has had input.
- Protecting children—Children shouldn’t be run over by divorce trains. Mediators can steer parties toward developing a practical Parenting Plan that makes sense for their situation. There are many models nowadays for custody and visitation. Mediation can offer creative solutions often not available in a litigated custody dispute to keep the divorce from being a devastating event for the children of the marriage.
- Fast Track—Waiting for the courts to set trial dates and continuances can feel like you’re on that episode of the Twilight Zone where the characters were actually on a model train going around and around and never arriving anywhere. Mediation sessions can be set in a reasonable amount of time. Parties who are sincere about getting on with their lives can save time and money by working with the professionals and stepping off the divorce train.
- Court still available—If you decide that mediation is not working for you, you are free to halt the process and pursue a traditional divorce in court.
Think of this as the new bullet train. This concept dispenses with the mediator and utilizes a fairly recent specialty in family law—Collaborative Lawyers.
As the name implies, rather than taking a completely adversarial role, the Collaborative team lawyers work with the other team professionals, Divorce Coach, Child Specialist and Financial Specialist with a common goal of helping find solutions that are best for the family.
Collaborative Divorce and Mediation share common advantages in terms of time and money savings compared to Court Trials. Collaborative Divorce takes a different psychological approach to bringing parties into agreement.
Features of Collaborative Divorce
- The Collaborative Agreement and no court pledge. The Collaborative Divorce aims to bring parties together in a non-adversarial manner. It is based on a pledge to reach an agreement without going to court. The spouses and their attorneys consent in writing to be a part of a respectful process that leads to out-of-court resolutions. The goal is to solve problems jointly and prevent a court room battle.
- The collaborative attorneys—The attorneys involved know the issues that need to be resolved. It’s their job to present creative solutions when the clients become stalemated. They also will tackle financially complicated matters that might include retirement accounts, investments, and property management. Parenting Plans are discussed and devised in the children’s best interests. Once agreements are made, the attorneys will draw up the documents required and usher the parties through the rest of the legal procedures.
- The collaborative team. Collaborative divorce uses a team approach. In addition to the attorneys and depending on the situation, the collaborative team may include:
- A divorce coach for each spouse who is trained in mental and emotional health areas. The divorce coach will help you through the emotional divorce and work with you on whatever skills you need to participate fully in the collaborative negotiations.
- A financial specialist for complex financial issues. The financial specialist can educate you about the ramifications of property settlements you are considering.
- A child specialist for disputed child custody cases. A child specialist can meet with you, your spouse, and your children and prepare a confidential report to guide you on developing a parenting plan that will meet your children’s needs.
- The four way meetings—In collaborative divorce, the spouses and their attorneys work together in four way meetings. Power struggles and wearing the opposition down is consciously avoided. A round table, rather than a rectangular conference table, sets a sense of psychological equality. Light refreshments and frequent breaks are incorporated. The atmosphere created for Collaborative Divorce meetings is conducive to reaching peaceful agreements. The parties are encouraged to participate in the proceedings and be more pro-active in developing settlement agreements.
Whatever legal train you may be boarding, you can trust the Zonder Family Law Firm to be at your side until you reach your final destination. Lisa Zonder is trained as a family mediator, collaborative team lawyer, and litigator. Whichever capacity she is serving, she brings expertise and a compassionate, common-sense approach to family law matters.