MODELS OF ADVERSARIAL AND
Different Vehicles Available for
The divorce process doesn’t have to be costly, in terms of financial, emotional and personal wellbeing. Conventional legal representation views marital conflict as an inherently adversarial situation. While conflict may be adversarial in nature, our response to it and the vehicle we pick to resolve it does not have to be. In fact, adversarial processes can and often do escalate the conflict by unnecessarily placing parties against each other in an expensive, accusatorial, highly stressful struggle to win. In a large majority of situations, people are much better served by a non-adversarial approach.
Most people have heard of mediation as an alternative process to resolving divorce. The newest model for resolving domestic disputes is called “Collaborative Family Law.” The application of these two alternative (non-adversarial) vehicles to making the divorce transition is described here and contrasted with the conventional litigation approach.
MEDIATION: Mediation seeks to facilitate a face-to-face conversation between the parties to the dispute. The theory is that when a safe place is provided for people in conflict to be heard and understood, this leads to the clearing up of misunderstanding and dissolves the sense of mistrust and alienation that exists between the parties.
Contrasted with the adversarial approach, mediation is a process that puts the parties in the position of the primary players, rather than the lawyers. With the assistance of a trained and skilled mediator, the parties are empowered to be able to talk about how they feel about the conflict, which gives them the opportunity to metabolize feelings of anger, betrayal and disappointment. This is critical to meaningful resolution. Litigation often brings hollow victories because the party’s “real needs” are not addressed. Instead, their feelings and concerns are filtered through a narrow legal relevancy screen or suppressed entirely.
A mediator is a neutral and impartial person, who may be a lawyer, a mental health professional, or other person with training in mediation. Neutrality means that one does not have an interest or stake in the outcome. Impartiality means that one does not take sides. Both are essential to the process and for retaining the confidence of the parties. The mediator is skilled at helping people come together in agreement, and can give legal information, but does not give individual legal advice. The mediator may prepare the legal agreement. Typically the mediator advises the parties to have independent legal advice in reviewing their agreements.
COLLABORATIVE LAW: Each party is represented by a trained collaborative lawyer. The lawyer’s role is two-fold: to advise the client about legal rights and responsibilities and to assist them in making decisions based on their highest interests. This additional role of the collaborative lawyer, to help the client make decisions aimed at their highest intentions, desires and best interest, is primarily what distinguishes the process from the adversarial system. These interests and values can include not only their material interests but also their relational interests and desire to maintain personal peace of mind. The spouse’s interests are seen in terms of needs and abilities.
The other element distinguishing collaborative law from litigation is that the lawyers cannot go to court in the case. If the spouses cannot reach agreement in the collaborative process, the lawyers are disqualified from representing them in court.
Litigation counsel typically take their marching orders from their clients when they are gripped by fear or anger (the normal experience of most people going through divorce). Zealous advocacy is often characterized by bullying and is used to justify “scorched earth” litigation tactics; to get the largest piece of the pie for the client, at great cost financially and emotionally. Threatening to go to court is common, and is the default position if one party doesn’t get what they want.
Collaborative law is a process, much like mediation. All negotiations are conducted in four-way meetings. All participants pledge themselves upfront to cooperate with each other to resolve the issues respectfully and sincerely, so that a mutually agreeable settlement is reached. The spouses themselves are the final decision makers, not the judge or their lawyers.
LITIGATION: The traditional method of obtaining a divorce is through the adversarial process using the Colorado divorce statutes and Rules of Procedure. The statutes and rules are somewhat inflexible. The judges in Colorado expect parties to know and use the rules and statutes even if they are non-lawyers. Even for lawyers, the rules and statutes are complicated and difficult to use.
The adversarial process creates a factory-like mechanism for handling divorces. There is only “one-size” for all divorces, without regard to your particular needs and interests. People often use lawyers for this process. Lawyers have an obligation to follow the rules and statutes and attempt to fit your facts into the mold of the legal process.
The adversarial process defines each party’s interests in terms of “rights and responsibilities.” This pits the parties against each other, unnecessarily. The spouses become litigants in a system that itself creates tension and conflict. Often, the ability to communicate, trust, and co-parent with the other spouse is destroyed by the process.
Prepared by Kathleen Franco
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