Can I Still Have a Judge Decide My Case if I Use Mediation or Collaborative Divorce?

Yes, you can still have a judge decide your case, if you and your spouse have not reached agreement on all issues of the dispute.

If, during the Collaborative Divorce or Mediation process you believe that the process is not effective at resolving the issues in your case to your satisfaction, you should inform your attorney or the mediator of your concerns, to see if there are ways to get over the impasse. If you are still concerned,  you may chose another process, including the litigation process (i.e.,  taking your case to court for a judge to decide). Fortunately, Collaborative cases using the protocols followed by the Middle Tennessee Collaborative Alliance, have around a 90% chance of successful resolution on all issues.

If your case does not resolve, your Collaborative Divorce attorney or mediator will step aside and help you move your case to its next step. The next step could be hiring another settlement-oriented attorney, or a trial attorney to represent you. When you end a Collaborative case, you have a right to your lawyer’s file, as you do when you end any legal representation. (Mediators are not required to give the clients their file.) In both mediation and Collaboration, as well as in litigation, settlement proposals and facts learned during settlement negotiations, are not permitted to be used at trial. This is a public policy established by the courts of the state to encourage open settlement discussions.

If , on the other hand, you have completed the Collaborative or mediation process, and have signed the Marital Dissolution Agreement and Parenting Plan that will be submitted to the court, you have signed a contract and you are bound to the terms of those agreements (absent fraud).

(NOTE:  You can also use Collaborative Divorce or Mediation to resolve such post-divorce issues that occur when one or both parties to the agreement have had significant life changes.  The terms of the signed agreement can then be modified or clarified, without using the court system).

Also keep in mind that it is possible for there to be many areas of agreement reached in the case, with only a few outstanding issues that appear too difficult to resolve using the process you have chosen.  When this happens you have the option of forming a partial settlement agreement covering only those issues that you and your spouse agree upon.  Then you can take only the unresolved and difficult issues to court.  This will reduce the costs of the litigation that follows.

Therefore, there is often little lost by first attempting to resolve as many issues as possible using the Collaborative Divorce or Mediation process, before turning to the courts and an expensive litigation process. And keep in mind that 90% of Collaborative divorces resolve ALL of the issues using that process alone, where both parties have lawyers, but both lawyers are trained in specific Collaborative techniques and both lawyers commit to a non-adversarial process throughout the case.

There is more information related to this topic on my web site at Collaborative Divorce and Divorce Mediation.

Is a ‘Holy’ Divorce Possible?

An opinion piece I developed with Vanderbilt professor A. J. Levine, was published in The Jewish Observer of Nashville: “Is a ‘holy’ divorce possible? A conversation between a lawyer and a Jewish studies scholar.”

It is part of my effort to encourage people to consider more peaceful options if they are facing divorce.

You can find the article on this link at page 21.

http://jewishobservernashville.org/2016/05/31/the-observer-vol-81-no-6-june-2016/

Conscious Uncoupling: Useful Tools for Divorcing Couples

The shocking realization that your marriage is ending often elicits understandable rage and sadness. You can stay angry or you can start to move forward. People do have choices, and the 2015 bestseller, Conscious Uncoupling: Five Steps to Living Happily Even After, by marriage and family therapist Katherine Woodward Thomas, offers both useful life perspectives and practical tools for moving forward.  These perspectives and tools help divorcing couples to better manage the many inevitable conflicts during divorce, so they can make better decisions for themselves and their children, and then move forward with their lives more quickly and productively. 

The book’s jacket notes provide a good summary:

“Sometimes, for many reasons, relationships come undone; they don’t work out. Commonly, we view this as a personal failure rather than an opportunity. And instead of honoring what we once meant to each other, we hoard bitterness and anger, stewing in shame and resentment-sometimes even lashing out in destructive and hurtful ways, despite the fact that we’re good people at heart. That’s natural: we’re almost biologically primed to respond this way.

Yet there is another path to the end of a relationship — one filled with mutual respect, kindness, and deep caring. Katherine Woodward Thomas’s groundbreaking method, Conscious Uncoupling, provides the valuable skills and tools for you to travel this challenging terrain with these five thoughtful and thought-provoking steps:

Step 1: Find Emotional Freedom

Step 2: Reclaim Your Power and Your Life

Step 3: Break the Pattern, Heal Your Heart

Step 4: Become a Love Alchemist

Step 5: Create Your Happily-Even-After Life

This paradigm-shifting guide will steer you away from a bitter end toward a new life that’s empowered and flourishing.”

In addition to the book, the author offers a series of Internet-based courses for people who wish to uncouple consciously with new-found emotional strength.

Will My Lawyer Be a Strong Advocate for Me in a Collaborative Divorce?

In a Collaborative Divorce your attorney is obligated, in the same way that a litigation attorney is obligated, to advocate on your behalf.  In both approaches, the first commitment of the attorney is to help his/her client establish and obtain their goals for their post-divorce life, within the limits of the law, by explaining the law and by explaining how judges are likely to rule in cases similar to their case.

(One of the most important differences between mediation and Collaborate Divorce is in the advocacy provided by your Collaborative attorney.  The neutral mediator cannot provide the parties with legal advice. That is why many clients choose Collaborative Divorce over Divorce Mediation.)

It is important to emphasize that advocacy in Collaborative Divorce also includes, to the same degree as in litigation, obtaining documents and gaining access to the essential factual information controlled by the other party (e.g., about income, assets, debts, business valuations, etc.)

In Collaborative Divorce cases, parties can engage the services of experts to provide “forensic analyses” of financial records, tax returns, etc., and to provide independent third- party financial appraisals. Therefore, neither side is disadvantaged in this regard, even if there was an imbalance of power or limited access to information during the marriage. The parties sign an agreement at the start of any Collaborative Divorce to be transparent in the exchange of financial information.

Despite the similarities, there are some importance differences in how advocacy is handled in a Collaborative Divorce case, in contrast to litigated cases. These differences typically allow Collaborative Divorce cases to be settled more quickly, more cost-effectively, and with less drama, stress and pain than litigated cases. 

These important differences are:

– Collaborative attorneys are 100% committed from the beginning of the case to finding a settlement that their two clients find mutually acceptable.  They focus on what their clients and their clients’ children need going forward for a successful post-divorce life, rather than focusing on past blame and punishment.

– Collaborative attorneys also avoid posturing, delaying tactics, and antagonizing the opposing side, since those actions — while perhaps appealing to some clients in litigation cases simply because it “feels good” — cost clients a lot of money and are counter-productive for reaching a settlement.

– A common role for the attorney in a Collaborative Divorce case is to empower the client to speak and negotiate for his or her self, by providing knowledge, legal advice, strategies, and help in formulating their goals.  Clients benefit, and the negotiation progresses more quickly, when clients find “their own voice” and shape their own negotiations.

– Yet, in those occasions when a client is not comfortable or not well-enough informed to speak about a certain aspect of the case, his or her attorney is prepared to speak on their behalf to keep the negations on track toward obtaining the client’s goals. 

– Likewise, if a client knows that by speaking or negotiating directly that they are likely to antagonize their spouse (or ex-spouse), then their Collaborative Attorney will speak on their behalf as a means of keeping the negotiation on track.

– Collaborative attorneys, therefore, always try to help their clients to make their case in the ways that appeal to the other side. This helps find the common ground needed for settlement, rather than escalating conflicts and angering the other spouse to no benefit (which is what can easily happen during litigation).

– Through a series of joint meetings during the Collaborative Process, in which the goals and priorities of each party are presented, explained and negotiated, both sides come to understand how to reach a good settlement.  

Therefore, rather than seeking a trial and a judge to decide the details of their settlement, clients quickly realize that the settlement will be better by using a process that lets them decide the terms of how they want to dissolve their marriage.

It should be noted that the entire Collaborative Team (i.e. two attorneys, the financial neutral and a neutral divorce coach) is focused on helping the clients find areas of common ground and “opportunities” for reaching a settlement.  Opportunities arise, for example, when both parents want the same things for their children, even if one has to give up something they would not have done otherwise; or when a client is willing to give up something in exchange for something they want even more from the other side. So, part of the process is helping clients to determine and rank their priorities.

Lessons from a Judge: Why Going to Trial Does Not Solve Conflicts in Divorce

The comments below are from Judge Paul Garfinkel of the 9th Judicial Circuit Family Court, of Charleston County, SC. He made these comments to divorcing parents before the start of their child custody trial, to encourage them — and their attorneys —  to go to a conference room that day and settle it themselves. 

His comments illustrate why judges in divorce and family law cases most often feel that the divorcing parties are in a better position to judge for themselves how best to resolve their conflicts, if they can only put their anger, hurt and egos aside.

The Collaborative Divorce process helps divorcing couples to do just that, but more effectively and at much lower cost, without ever preparing for a court room trial.  It does this by allowing each of them to prioritize those things they truly value for their post-divorce life. Most often that is their children’s well being, their own relationships with their children, and their financial resources for the future.

This contrasts with the traditional litigated divorce, where each side (i.e., the attorney and client) prepares for trial by trying to find the faults and negatives in the behavior of the opposing spouse. As a result the couple often loses focus on what they value. Worse yet, they are handing over their decision-making ability to a judge, a judge who can never understand their needs as well as they do.

While they are fighting, preparing for trial and hoping to win, they are actually worsening their relationships with their children and they are draining their financial resources.

Please see this link to what children say about high-conflict divorce and this article by Lisa B. Forberg from the NN Bar News on the benefits of a commitment to a settlement process in divorce cases.

(The comments below were originally blogged by Jeanne M. Hannah in 2013 on her “Updates in Family Law” blog.)

THE COMMENTS FROM THE HONORABLE PAUL GARFINKEL
TO PARENTS PRIOR TO THEIR  CHILD CUSTODY TRIAL

I want to make a few comments to you about how  important it is to your family to resolve this case.  I know that both  of you sit here today; each of you are convinced of the merit of your  own case and the righteousness of your own position. However, asking  your attorney to convert your convictions and beliefs into evidence  that will result in a verdict in your favor is asking for what I believe the most difficult task that a trial attorney can be required  to do.

A custody case is much different than any accident case or a criminal trial. In those cases, an attorney is only asked to  prove what happened at a specific date and place. All of the events have been fixed and are unchanging. A custody case is much different. You are asking your attorneys not to paint a picture in time but to present a movie. The movie must show over a broad range of time how each of you parent. Then, I must decide which of you is the better parent.

Can you imagine if you had to prove that DaVinci’s “Last Supper” was a better painting than Michelangelo’s “Creation” and  say that you had to prove this to someone who had never seen either painting, and you weren’t allowed to show the paintings to them?

I suppose you could hire the curator of the Metropolitan Museum of Art who would come to court and testify about  composition, color, depth, character, and proportion. Or I suppose you  could bring in some ordinary people to say which one they think is better. Maybe you could take a poll.

This is what you are asking your attorneys to do in this case. They have to prove to me which is the better parent, but  they have no way of showing me exactly how you parent. They can’t take  me to the study sessions so I can see you how a good tutor Dad is.  They can’t bring me into your child’s bedroom at 5 a.m. to see how Mom  confronts the child who is awakened with a fever. I want you and I want your attorneys to bring up those incidents which show you to be  caring and loving parents, and I am sure they will try.

However, it is more likely that they will be forced to show the other parent at his or her worse. Neither of these efforts  will work very well. In trying to prove the positives you will  discover that with the passage of time the inability of witnesses to  describe the situation with the same force with which it occurred,  just the difficulty of putting into words other peoples thoughts, feelings and actions, all of these combine to make grey what you felt  was vivid or blunt what you thought was poignant.

On the other hand, the negatives will seem to make you look like the worse parent that ever lived. Did you ever send one of  your children to school without [their] lunch? Did you ever forget to give one of your children [their] medicine? Did you ever say about your child “I could have strangled her?”

We probably have all done those things, and it will be presented as if you are the most neglectful or abusive parent. At the  end of the trial any goodwill each of you had for the other, if there  is any, will have been totally destroyed.

It is both of you who must be parents of these children until either you or they die. Neither I nor any of these lawyers . . .  will be there for you for the remainder of this long journey. We could  try to do our best to get you pointed in the right direction and maybe  even help you along, but it is only in the first few steps. In the  end, it is both of you who must raise these children.

If your children could reach into their hearts and tell you exactly what they think and feel about what is going on here, if  they could get beyond the hurt we know they must feel, we all know  what they would say. First they would say, “I wish Mom and Dad were  back together.” Knowing this will not happen, they would say, “I wish  they would just stop fighting.”

No doubt they love you so much they are probably blaming themselves for your original breakup. It is time you get past  the anger and put aside the hurt. You may even have to forgive.

The pain that has been caused here arises from the conflict between each of you and has nothing to do with the children.  Your children want this conflict to end. You have the chance to leave  here today with an agreement that is in the best interest of your  children. But it is an agreement that you must reach together. You  must be willing to put aside your differences and be willing to  accommodate each other’s needs. But most importantly, you must be  ready now to put the needs of your children first.

I know that your children want you to settle this case. You can do the right thing and you can start now. Put aside what has  happened in the past.

This is the judgment day for your children. It’s not about you. And think about the additional damage you are going to  cause to these children.

I can tell you right now it has happened, and it happens every time. Put aside your own egos and swallow them. Leave it  in this courtroom. We’ve had a lot of egos left in this courtroom. You  don’t see them, but I do because I see parents who are willing to put  their children’s welfare above their own ego. And they leave it right  here and they know and understand what is really best for the children.

The Message from Children to their Divorcing Parents

“Show us that you can work together even if you don’t’ like each other anymore!”

When you allege in a public court document that your spouse has had an affair, what does that do to your children? Even if it is true, children need to be protected from their parents’ emotional conflicts.  For some examples of how parental conflict adversely affects children, see these drawings from children of divorce.

Children (of all ages) want their parents to collaborate and not litigate to resolve the terms of their divorce. What children yearn for goes well beyond the usual method of starting out in court and settling “on the courthouse steps,” as the majority of divorce cases do. What they want even goes beyond hiring a mediator to facilitate a cooperative agreement.

See this page for more information on the Collaborative Divorce process.

When it comes to divorce, the collaborative model of dispute resolution is a unique gift to children, because it puts children’s needs first. In collaborative divorce, no matter how angry parents might be at one other, if they can keep their children in the forefronts at all times, and have a supportive team of professionals helping them do so, they can avoid the emotional damage to children that so often accompanies a non-collaborative divorce. Children, even adult children, can appreciate their parents working together, despite the deep and upsetting conflicts between them. Children can continue to see their parents as the good role models they once were as conflicts are resolved through collaboration rather than warfare.

Another distinction involves whether collaboration means giving in to the other person, or one person sacrificing for the sake of the children, while the more vocal parent gets his or her way. The collaborative process insures that both parties walk away with a mutually-acceptable agreement, not a lopsided one. Both parents are important to their children and children want to be free to love both of their parents without qualification. The two collaborative process attorneys are committed to this concept, as are the neutral coach and financial professional who are part of each case.

Parents who choose a divorce process that focuses on a positive co-parenting future and one that helps parents communicate about their children going forward provide their children with a gift that will last forever. Please collaborate, and don’t litigate, to resolve your marital issues. Your children will thank you.

Is Collaborative Divorce the Same as Mediation?

Many people confuse the Collaborative Divorce process with mediation as used in divorces. While a Collaborative Divorce has aspects of mediation within it, the main difference is that in the Collaborative Divorce process both parties are fully represented by their own lawyer, acting as advocates, from start to finish. The lawyers in the Collaborative Divorce are there to look out for the best interest of their respective clients, and ensure then the resulting settlement is fair, but not to belittle, “position against” or “attack” the other spouse.

See these two pages of my web site for more information on Collaborative Divorce and Divorce Mediation.

Having a lawyer by your side at all times means that imbalances in knowledge (e.g., about financial matters) or power imbalances within the marriage will be corrected so that informed and durable decisions can be made.

When one spouse has been the main bread-winner, or owns a business or has a complicated wage and benefit structure, mediation without the constant advice and involvement of an attorney on your side, can result in less than optimal agreements. Being fully represented by an attorney who is committed to settlement out-of-court, and who does not escalate conflicts, provides the best of both worlds between the mediation and the litigation process choices.

Mediation with both parties face-to-face with their neutral facilitator, or with the mediator shuttling between the parties in different rooms, can also work well and be cost effective. However mediation without a lawyer to represent you is most viable when the marital assets and finances are uncomplicated and the parties do not have a power or knowledge imbalance between them.

How Long Does a Collaborative Divorce Case Take to Finish?

In the Collaborative Divorce process the spouses (i.e. the two parties in the divorce case)  make their decisions through a series of face-to-face meetings, which can be scheduled closely together or spread out, depending on the needs of the clients. In my ten years of experience handling Collaborative Divorce cases, I have found that these divorces take, on average, four to six settlement meetings for the parties to reach a final agreement, which is then filed with the court. So, in terms of the number of months it takes to finish a case, it can take longer to negotiate all of the terms of the divorce when:

  • One or both parties must travel for work and meetings must be spaced out
  • An asset, such as a piece of real estate, needs to be sold before other financial decisions can be made
  • A business or pension must be appraised before the division of marital property can be discussed
  • A creditor needs time to establish a debt payment plan before other marital property can be evaluated for division
  • A special needs trust must be set up before the parties can move to other parts of the negotiation
  • The parties have emotional blocks that need time to resolve before rational decision-making can occur
  • The parties need time to work on their respective budgets if alimony or other income transfer is anticipated.

Even once all of the terms of the agreement are signed and filed with the court for its review, you may still be represented by your lawyer as you wait the requisite 60 days that you must under Tennessee law for the court to rule on your paperwork. By the time the agreement is filed with the court, the negotiating is done and the tasks are mainly administrative in nature.

If qualified retirement accounts need to be divided via court order, the distribution of this type of asset should be overseen by the attorneys and thus can add more time to the entire Collaborative Divorce process. At this point, though, the terms should have been negotiated along with the other terms of the divorce. So again, as with the wait for the final order on the decree of divorce, the tasks are mainly administrative in nature.

Therefore, if you hear that someone’s Collaborative Divorce case took over a year to resolve, keep in mind the above factors. Just know that in most instances, you are paying far less in professional fees overall when you collaborate instead of litigate.