In an ideal world, all divorcing couples would be able to resolve their differences over a cup of coffee and without any professional assistance at all. Unfortunately, the reality is that most divorces will require some form of professional assistance. When considering the spectrum of professional assistance, remember that as the amount of professional intervention increases, the less privacy and control the divorcing couple has. This post discusses the least intrusive professional assistance options currently available, while part 2 will cover the other end of the spectrum.
- Limited Scope Legal Representation: In this model, also know as “unbundled legal assistance”, the client takes primary responsibility for the divorce and manages the entire case, making use of legal counsel on an “as needed” basis to help with specific, well-defined tasks (drafting papers, resolving a specific issue, providing limited advice). The lawyer takes no responsibility for managing the case and his role is defined more by what he does not do than what he does.
- Mediation: Here a single neutral person (generally a lawyer or mental health professional, but can be anyone trained to be a mediator) helps the couple reach agreement. However, the mediator does not give individual legal advice, provide specific solutions, or process the case through the court. Some mediators may prepare a draft of the divorce agreement. Generally, it is recommended that both members of the divorcing couple hire their own lawyers for independent legal advice during the mediation process.
- Collaborative Law: Under the collaborative model, each person retains their own trained collaborative lawyer to advise and assist them in negotiating a comprehensive agreement. The lawyers cannot go to court or threaten to go to court, and their only agenda is to help the couple reach a settlement. All negotiations take place in “four-way” meetings attended by all parties (clients and their lawyers). This gives each client built-in legal advice and advocacy during the negotiation process, while leaving the decision making process to the clients. The lawyers’ job is to guide the client towards a reasonable resolution of the issues that meets the clients needs. If either client wants to go to court, the lawyers are disqualified from further participation. The lawyers generally prepare and process all the paperwork required for the divorce.
- Conventional Representation: Here, each person hires an attorney. The attorneys will investigate the possibility of settlement, but generally prepare the case for trial. The pacing and objectives of the representation tend to be governed by the court’s rules and schedule. While a settlement may be reached prior to trial, the lawyers’ efforts will be directed towards preparing for trial. The lawyers have no particular commitment to settlement because they will continue to represent the client should the case go to trial. Generally, divorces handled under this model take longer and involve higher legal fees than collaborative law cases or mediated cases.
- Arbitration: The clients and their lawyers choose to give a private third party (an arbitrator) the power to make certain decisions for the clients. This is an alternative to having these decisions made by the public court system.The lawyers’ job is to present their client’s case to the arbitrator. The arbitrator then weights the presented facts and renders a decision. While this option may reduce the costs and delays associated with litigating in the public courts, the emotional costs are as high as those in conventional representation because the parties’ positions remain polarized.
- Protracted Litigation: Or all out war occurs when one or both parties takes extreme, black & white positions and seeks to use the courts as a means of revenge or validation. This is an extremely costly (both emotionally and financially) option and can be very destructive, particularly for innocent third parties like children. Due to the fact that these cases can drag out for years and their extremely high cost, few clients report that they are satisfied with the outcome (even if they win).
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