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The decision to get divorced is often a painful one, replete with sadness, anger, and fear and an overall psychological impact that can truly take its toll. However, every divorce need not devolve into an acrimonious battle during which dueling spouses are depleted of their financial and emotional resources.
Although movies and made-for-television dramas depict otherwise, divorce is not always filled with animosity, discord, and heated courtroom battles. In fact, there are many alternatives to litigation, including mediation, collaborative divorce, negotiated settlements, and arbitration—which can influence the state of one’s mind as they navigate the process.
There is no one-size-fits-all way to getting divorced and depending upon the circumstances and the personalities of the spouses involved, divorce can often be achieved with a customized process reflecting the goals and temperaments of the individual spouses. Psychologically, this can make divorce feel more manageable and help mitigate the loss of control that many spouses experience when their marriage ends.
Mediation is a form of alternative dispute resolution where couples work with a neutral third party (the “Mediator”) to reach an agreement. It is typically a more cost-effective and collaborative alternative to the traditional adversarial process where couples negotiate an agreement through their respective attorneys or litigate against one another in court. Mediation is best-suited for couples who share mutual respect and transparency about their goals, equal bargaining strength, and a commitment to reaching an amicable resolution of their dispute. By entering into an amicable process at the outset, couples retain a sense of civility and shared purpose which can psychologically help ease the pain of their separation.
Mediation is not recommended for couples who have a history of domestic violence, whose animosity will preclude them from working in a collaborative manner, or where there is a power differential that makes advocating without the help of an attorney difficult. The Mediator helps guide the couple through the mediation process by: (a) providing structure to their communication; (b) clarifying the law as to each of the issues in dispute; (c) helping the couple overcome differences by eliciting each of their concerns; and (d) identifying the strengths and weaknesses of each person’s position. The Mediator will also provide practical guidance to the couple if they reach an impasse by explaining the likely outcome of the dispute if they resolved it in court. In doing so, however, the Mediator is not advocating for either person’s position. Instead, by framing the alternatives to mediation, the Mediator can help motivate the couple to re-assess their positions and identify areas of compromise, particularly if they want to avoid litigation.
Collaborative divorce is a process wherein spouses, along with their attorneys and a team of professionals (if needed) work together to reach an agreement that feels fair and equitable to both spouses. Psychologically, this team-approach can help mitigate feelings of isolation which are often present during a divorce process. The collaborative negotiation is the product of face-to-face meetings which take place outside of a courtroom until an agreement is reached on all outstanding issues. In fact, parties even agree in writing at the outset of the collaborative process to refrain from litigation in the event of a dispute.
For those that value and strive towards an amicable outcome, this is symbolic of that commitment. While this does not preclude spouses from litigating, it does prevent their collaborative lawyers from representing them in any future litigation. This is a unique feature of the collaborative divorce process which can inspire a commitment to resolving issues outside of court by both spouses and their attorneys.
In the best-case, easiest and least expensive scenario, both spouses want a divorce, have
discussed the terms, and have reached an agreement in principle concerning, where appropriate, child custody and parental access, child support, spousal support, the equitable distribution of marital property, counsel and experts’ fees, health insurance, life insurance, and so forth. All that is then left to the attorneys to do is draft an agreement incorporating all the terms you have agreed to into a written agreement.
Assuming you and your spouse have thoroughly reviewed the agreement, discussed its terms with your respective attorneys, and agree that it accurately says what you want it to say, you will sign the agreement and the attorney(s) will prepare the necessary documents to submit to court such that the judgment of divorce can be granted. In the absence of spouses having discussed and reached an agreement between themselves, each spouse’s attorney will identify the issues in dispute and negotiate the terms of a resolution. This may require the exchange of financial information, such as tax returns and account statements. Assuming the negotiation goes smoothly, a final written agreement can be executed which incorporates the agreed-upon terms. Having an attorney negotiate the terms of an agreement, instead of doing so through one of the other processes (e.g. mediation, collaborative divorce) can psychologically feel more protective. What is more, it takes the hard conversations out of the hands of the individual spouses and leaves it to lawyers to have directly with one another.
Arbitration is another form of alternative dispute resolution conducted outside of a courtroom wherein parties submit their unresolved issues to an agreed-upon decision-maker (the “Arbitrator”) with whom they vest authority to issue a final, binding decision upon them. Although it is not required, parties often appear before an Arbitrator with their own attorneys. The Arbitrator reviews evidence, listens to testimony, decides motions (if necessary), and ultimately decides the issues in dispute. Unlike litigation, arbitration can be more expeditious and feel more amicable. Less formal than litigation, arbitration often appeals to spouses looking to engage in an alternative to litigation who recognize the need for a dispassionate third-party to resolve their disputes. Knowing that there is a “decision-maker” built into the process can be psychologically reassuring for couples as it insures finality and a clear mechanism for the resolution of disputes.
In conclusion, no matter what process spouses use to get divorced, it can be difficult. However, having the knowledge and understanding that alternatives to litigation exist can help divorce feel less daunting and mitigate the oft strong emotions that accompany the decision to end a marriage.