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.

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.

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.