When “winning” is really “losing”.

I have heard fellow attorneys suggest that because I practice in a non-adversarial manner that I am less of a lawyer. Their flawed argument is that only through adversity can there be a winner and a loser and by striving to be the winner, you are more likely to be a zealous advocate for your client. Really?! I beg to differ and here’s why.

  • Divorce is not  the goal. Sure, in its purest sense, what spouses who can no longer be married want is a divorce (i.e., a legal termination of their marital relationship). But, I’d suggest that what they really want is the optimal winding down of one stage of life AND the best foundation for starting the next part of their life.

Unfortunately, the traditional separation and divorce model has little regard for the latter and generally turns the former into an unneeded, unproductive and costly war.

Mediation and collaboration focus on the process and experience of marriage breakup and life afterwards. You still need the Court to grant the final divorce decree to establish the legal end of your marriage but that is the only commonality between the two approaches.

  • Marriage is complex. The traditional approach to divorce treats the marriage as a legal entity primarily. If it was only so simple. Yes, there are volumes of statutes and case law that address the legal entity, how it is created and terminated. But marriage is also a complex nexus of emotional, physical and business issues that defy cookie-cutter solutions.

The traditional adversarial approach to separation and divorce infuses a complicating layer of heightened and raw emotions that only further confuse and entangle the issues that need to be resolved. At a time when clarity and good dialogue are paramount, the process pits the spouses against each other.

Mediation and collaboration are designed to segment and clarify the issues that need to be resolved then to empower the spouses to seek the best solution through open and honest communication and creative problem solving.

  • Financial stability is critical. Lawsuits are expensive. Consider that in many cases today, there isn’t sufficient cash flow to support one household, never mind two. The traditional, adversarial approach to separation and divorce puts a severe strain on cash flow, no matter what the economic situation of the family is. And, with court filing fees increasing substantially, the financial burden grows even more intense.

If the real goal is to prepare the family or spouses for a new lifestyle after the legal divorce, wouldn’t it be best that there be as much financial means as is possible to support two lifestyles?

Mediation and collaboration have costs but they are generally far less than those of the traditional approach. Further, in mediation, the parties can help to control the costs by doing homework and coming to settlement conferences fully prepared and engaged. This expedites the resolution and saves not only money but time and emotional drain too.

  • Collateral damage can and should be mitigated, not exploited. The traditional route to divorce focuses on the spouses and rarely takes in to consideration the impact of the divorce on children, extended family and other loved ones. In fact, all too often these individuals become unwilling pawns in and victims of the ensuing war. That’s not humane.

Our approach takes in to consideration these important peripheral parties who are impacted by the breakup of a marriage. In collaboration, we can draw on other experts in mental health, social work and other disciplines to help mitigate the impact leading to a healthier outcome for all.

  • Interests are important, not positions. In a separation and divorce what is most important is what each spouse needs in order to move on to the next part of their life. Unfortunately, the traditional approach de-emphasizes interests and puts too much importance on the position of each party. In the adversarial process, that sets up the winner/loser scenario. The fact is, however, that it really just creates two losers.

We’ve already talked about the fact that marriage is a complicated relationship and, as such, it brings with it lots of emotions ranging from fear to anger to despair. Out of these emotions, each spouse assumes a bargaining position that is fueled by their emotional state and which usually clouds their ability to make rational decisions.

In mediation and collaboration we’ll deal with positions by working to identify the real, core interests of each spouse and ensuring that the focus is on meeting those interests. That’s not to say that there is no room for emotions at the table, there is plenty. It’s just that instead of using emotions to create artificial positions, we continually return to the underlying interests and help to balance the emotional roller coaster.

The traditional, adversarial approach to divorce generally will result in a winner and loser but does anyone really win? We think not.

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