Alternative Pathways for Divorcing Families
The decision to divorce is usually a difficult one, particularly when the spouses have young children and when they have been married for many years. Once the decision has been made, whether by only one spouse or by mutual consent, another important decision must be taken: which pathway should be used to work out the terms of the divorce? Once upon a time, there were only two alternatives – direct negotiations between the spouses or the adversarial process of litigated divorce. Very few couples are able to work out the terms of their divorce without professional assistance, so most divorces in the past were the outcome of a judge’s decisions and usually two adversarial attorneys were in charge of the process. Often the two attorneys would negotiate a settlement on behalf of the spouses – sometimes they avoided an expensive and unpleasant legal battle, sometimes they settled only after a lengthy court battle.
A third alternative appeared on the scene in the early 1980’s in the United States and in the 1990’s in Israel – mediation, a process in which a neutral third party (the mediator) facilitates and guides discussion and negotiation between the two spouses. Divorce mediation is often chosen by those who want to avoid involving attorneys, but they may have legal advisors or advocates in the mediation sessions or for consultation between mediation sessions. Mediation offers a framework that enables separating couples to get professional assistance in working out a divorce agreement in a cooperative and respectful manner. Mediators in Israel are primarily either professionals with a mental health background (psychologists, social workers, counselors, family therapists) or attorneys who prefer to assist divorcing couples by using a non-adversarial method. Mediation is undoubtedly a less expensive and a much faster pathway to divorce than litigated divorce and it has been shown to be considerably better for families, particularly for the children.
In order to educate the Israeli public about the mediation option, I wrote the first book about it over twenty years ago (Divorce with Respect, 1990 and out of print) and the Hebrew translation (גירושין בדרך אחרת, 1993, also out of print). As family courts were set up in Israel years later, and mediation had developed considerably, I published an updated book about divorce mediation for the Israeli public in the year 2000 and then a revised edition in 2004 - להתגרש ולהישאר חברים .
However, while mediation has enormous benefits for families, only a minority of divorcing couples in Israel actually choose mediation as their pathway to divorce. Moreover, not all couples are suitable for the mediation process for various reasons. When either or both spouses are extremely hurt and angry, they actually want revenge and hope to hurt the other spouse in the litigation process. Often there is not enough trust in the honesty of the other spouse so that mediation may appear too risky for the “weaker” side. Another factor is the level of conflict, as mediation works best when the level of conflict is low or moderate. High-conflict cases usually end up in court for judges to decide the outcomes. There are also situations in which one spouse does not feel able to negotiate with a more knowledgeable and powerful spouse without having an advocate present to protect his/her interests or even to speak for him/her. Some people prefer to have a judge decide the issues rather than to “give in” or compromise in some way. The bottom line is that mediation is not an appropriate framework for all divorcing couples.
In recent years a fourth alternative that was developed in the U.S. towards the end of the twentieth century has reached our shores and is now another pathway to divorce in Israel. In a previous of issue of ESRA Magazine, Randy Tischler wrote about the new model, “Collaborative Divorce”. The essence of the new model is that while two attorneys represent the individual spouses, they are committed to working collaboratively (as opposed to adversarially) with one another and to work towards a consensual agreement without using the courts except to approve the final divorce agreement. In other words, it is an out-of-court divorce led by two attorneys. The attorneys have been trained in the collaborative method and are sincere believers that collaboration is preferable to litigation for family issues. Usually an interdisciplinary team is formed, including a child specialist (if necessary), a financial expert (if needed for the property settlement) and one or two divorce coaches who are mental health professionals who focus on the emotional obstacles to resolving the issues and who help prepare a parenting plan with the couple. This model is more expensive than mediation because of the legal representation for each spouse. The process takes longer than mediation but it may be a very effective process. It is the perfect choice when the spouses feel the need for individual legal representation (to be sure someone is looking after their interests) but do not want “war” in court. Those interested can read more about the process on the website of the international organization for collaborative practice where they will also find a listing of the various collaborative practice groups in Israel (www.collaborativepractice.com).
Before the divorcing spouses confront the many practical decisions they must make regarding the children, the family home, child support and property division, they have to decide which pathway to use as a framework for dealing with those practical decisions. Should they do it by themselves? Use a mediator? Seek collaborative attorneys? Or get a traditional attorney as soon as possible to begin lawsuits against the other spouse? Below is a table that shows the appropriateness of the four pathways for various situations. The four pathways can be viewed as a continuum from the least costly (in money and in time) – direct negotiations without professionals intervening - to the most costly and potentially destructive at the other end (litigation). Other aspects of the continuum are the degree of control the couples have over the process, the degree of responsibility and control they have for the outcomes (the terms of the divorce) and the complexity of the process.
(insert Table here)
Mediation and “collaborative divorce” are both collaborative processes with several commonalities:
- The meetings are private and confidential – sensitive issues, such as infidelity, sexual preference, substance abuse can be discussed without concern of a public record.
- Emotional issues and religious matters can be discussed, even though they have no legal implications.
- Urgent matters can be dealt with in a timely manner and partial or temporary agreements can help the family function until a comprehensive divorce settlement is reached.
- The parties have control over the outcome, as they make the decisions about their children, finances and property.
- Creative solutions can be found that meet the needs of the particular family.
- Both processes use neutral experts, as needed, to help the parties base their decisions on a full understanding of their children and their finances.
- Both processes focus on the needs of their children and encourage cooperation in co-parenting after the divorce.
- Both processes are more efficient and less costly than litigation.
Mediation is the best alternative for rational, intelligent and mature people who want to work things out in a fair and reasonable way that takes into account the needs of all family members. “Collaborative divorce” is the best alternative for those who want an amicable resolution but need an advocate to help them do it effectively or a coach to assist them with their strong emotional reactions and problematic interactions with one another. Parties who want to fight and will not consider a reasonable settlement should use “traditional” lawyers and the litigation process.