Introduction

People going through legal separation or divorce have several process options for resolving the issues surrounding their separation/divorce, including traditional representation, mediation, and collaboration.  The process option chosen will depend on several variables, including whether both parties are able to cooperate with each other in dissolving their financial ties and whether they will be able to problem solve together in a productive manner or not.  To the extent that they cannot, the need for lawyer involvement increases.  We find that parties’ ability to problem-solve, with and without attorneys, falls on a spectrum, with the inability to effectively communicate and/or problem-solve resulting in higher legal fees.

Traditional Representation – Negotiation, in the Shadow of Litigation

 With traditional representation, both parties retain separate counsel who act as their advocates and representatives in all matters relating to the divorce or separation.  Depending on the level of trust and cooperation, that traditional representation can be fairly straightforward and effective and result in a negotiated agreement on all issues between the parties. The more acrimonious the separation, the more formal representation and advocacy is required.  Similarly, the more distrustful the situation, the more formal representation and advocacy is required.  The parties and attorneys operate in the shadow of litigation, knowing that if they cannot resolve matters by agreement, ultimately, a judge will apply Wisconsin’s legal standards and decide all issues relating to the divorce/separation.

Many separating couples are able to work together in a problem solving mode, with the help of their attorneys.

Some couples choose for only one of them to retain a lawyer.  This lawyer drafts all the necessary pleadings and agreements, and when it is time to finalize the matter, the other party seeks separate counsel to have the agreement reviewed on his or her behalf.  When the issues are not overly complex and the disputes are narrow, this may be a cost effective manner for processing your divorce/separation.

Collaborative Law

Most of our family law attorneys are members of the Collaborative Family Law Council of Wisconsin (see www.collabdivorce.com). We believe in participating in this model for resolving divorce cases when appropriate.

The goal and essence of collaborative law is the shared belief by participants that it is in the best interests of the parties and their families in typical family law matters to commit themselves to resolving disputes outside the courtroom in an optimal manner. The parties adopt a conflict resolution process which does not rely on a court-imposed resolution. The process relies on an atmosphere of honesty, cooperation, integrity, and professionalism. The goal is to minimize the negative economic, social and emotional consequences of protracted litigation/adverse proceedings to the participants and their families.

• Each party is represented by separate counsel.
• The parties and attorneys sign a binding participation agreement providing that the attorneys are retained in a limited engagement to facilitate a reasonable, efficient settlement of all issues.
• The agreement commits the participants to good-faith negotiations, without the threat of or resorting to litigation during the pendency of the collaborative process.
• The parties agree to voluntary and full disclosure of all information.
• If a client terminates the process and initiates litigation, both attorneys are disqualified.
• If the process terminates and litigation ensues, the collaborative agreement may give the court jurisdiction to make awards of attorneys’ fees and costs against any party who has mis-used the collaborative process for delay, deception or other bad-faith purposes.

Reasons to Sign on to the Collaborative Process

With the Collaborative process, clients have access to a team of trained professionals to help them through the separation/divorce proceeding, including, as applicable, mental health coaches, child specialists and financial neutrals, with the attorneys there as “case managers” and effective guides through the legal issues.  Most clients find the mental health coaches to be indispensable in dealing with the inevitable emotional issues surrounding the break up, and they find the other professionals to also be helpful, in large part, because of their neutrality and special expertise.

The Collaborative process is more empowering for clients than the litigation process, where the decision about issues affecting their children’s future, and their own financial future, is made by someone else. Clients are the clear decision-makers and determine the course of resolution and agreement, with guidance from their attorneys and other team members.

The Collaborative process lends itself well to the use of creativity and flexibility, and is much more likely to be adhered to than a decision imposed by the court.

Resolving cases with Collaborative Law participation is generally “quicker” than the traditional approach, because the parties regularly meet and problem-solve, and cooperate in getting the necessary paperwork done in a timely fashion.

Caveat: Collaborative Law Is Not Always Appropriate

Collaboration depends on good-faith participation. If participants are not acting in good faith, collaborative law is not the way to go.  If there are suspicions of intentions to delay, to be dishonest, or to commit fraud, collaborative law is definitely not the way to go.

If there is a strong reluctance to fully sharing all relevant information, especially financial information about the parties’ assets, collaborative law is not the way to go.

If one or both participants have a mental illness or history of mental illness, collaborative law may not be the way to go.

If one or both participants have difficulty being in the same room together, collaborative law may not be the way to go.

If there is a history of physical, verbal, or emotional abuse, collaborative law may not be the way to go.

Finally, the costs can be higher than anticipated if Collaborative Law fails – in that event, the client will need to retain another attorney to finish the divorce.

Mediation

Almost always considered favorably by the parties, their attorneys and the court, mediation works well when parties are behaving more rationally than irrationally and are willing to fairly compromise. Mediation will not work well in settings of power imbalances or when one spouse is not ready to reach decisions or let go of the marriage.

“‘Mediation’ means a dispute resolution process in which a neutral 3rd person, who has no power to impose a decision if all of the parties do not agree to settle the case, helps the parties reach an agreement by focusing on the key issues in a case, exchanging information between the parties and exploring options for settlement.” Sec. 802.12(1)(e), Wis. Stats.

Mediation is a cooperative and voluntary process, and either of the parties or the mediator can terminate the process at any time.

Reasons to Mediate

1. Cost. Usually, a cost-benefit analysis leads to a decision to proceed with mediation. The only real downside is the transaction costs for participating in the mediation (e.g., preparation of mediation statement; participation at mediation). Compared with the cost of a one- or two-day trial, the cost to participate in mediation is far less.

As lawyers, we have a duty to our clients and society to provide cost-effective service, and participating in mediation may sometimes be the best way to provide such cost-effective service. (Sec. 802.12, Wis. Stats. Annotated, Judicial Council Note-1993). Our lawyers have extensive experience in participating in mediation with their clients and in acting as mediators on behalf of others to help settle family law disputes.

2. Self-Determination/Empowerment. Mediation can and should be empowering to the participants because they are the decision-makers (not the judge, although the judge must ultimately approve any settlement that you do reach) and can determine the course of resolution.
3. Flexibility. Mediation provides more potential for creative solutions. Participants can potentially reach solutions that cannot be imposed by the court, e.g., setting your own terms for non-modifiable support; creating a provision for college support; settling upon a fair payment schedule for the pay-out of property division.
4. More likely  to be followed than an imposed decision from the court.  Mediation can foster a cooperative relationship between spouses, which is particularly helpful when the parties have minor children. The likelihood of litigation after the case is initially resolved, on matters such as modifying the judgment or enforcing the judgment, is substantially reduced.
5. More uniquely suited to individuals than court order.  Parties can tailor their agreements to their personal needs. Court orders tend to be more generic and may not take into consideration certain personal considerations unique to an individual’s case.
6. Quicker than litigation.  Mediation can generally result in resolution of disputes more quickly than litigation.
7. Voluntary – A settlement cannot be forced.  Although the court has the authority to order parties in civil litigation to attempt mediation or other settlement processes to resolve a case, it does not have the authority to require a resolution. Gray v. Eggert, 2001 WI App 246, 248 Wis. 2d 99, 106-07, 635 N.W.2d 667: “Moreover, while the mediation process will often depend on the parties’ good faith and open-minded flexibility, it does not require any party to abandon a legal position or settle a case.” Id. The parties themselves must agree to the process, one which is entirely within the parties’ control because it cannot proceed without their consent.

Caveat: Mediation cannot resolve all cases

Here are some of the examples of types of situations that do not lend themselves well to resolution by mediation:

• Parties not in the same universe
• Unreasonable expectations/expecting miracles
• Unwillingness to compromise
• Overly adversarial attorney/party
• Withholding information/undervaluing and overvaluing assets
• Rushing the process
• Need for vindication
• Legal principle at stake
• Mental/emotional incapacitation
• Power imbalance/domestic violence

Litigation

When negotiation, mediation, and/or collaboration will not work or are not appropriate, litigation is the  choice of last resort.  If that is the situation, we diligently and thoroughly prepare cases for depositions, hearings and trials, as necessary, and advocate our clients’ cases as trial lawyers. Our lawyers have years of trial experience in family law cases.

Summary

When we consult with our clients, we discuss at length the advantages and disadvantages of the traditional model, negotiation, mediation, and collaboration, and we strategize with our clients to reach the best decisions according to the unique circumstances of each particular matter. We provide our clients with other legal information, as well as resource information, relating to the special financial and emotional issues that they may be facing at the time. We work with our clients to ensure that they make informed decisions about their children’s futures and their own financial future, and resolve matters as smoothly and efficiently as possible.