I recently mediated a contentious, ongoing custody case. As the mediator, I had the benefit of looking at the case through the lens of an impartial facilitator and what I witnessed was very sad and also, far too common:
- Two parents whose hatred and disdain for each other was deep and intense AND whose mutual love for their daughter was equally as deep and intense.
- The parties’ lawyers sabotaging any hope of a resolution outside of the courtroom
The lawyer for the wife in this case is a good person, a smart guy and a dad himself. This lawyer is also singularly focused on the WIN. Sure, we all want the WIN, but in the context of family and marital cases, what does the WIN mean? Who is the WIN for? And, is there even a WIN after all the emotional and financial damage of divorce litigation?
In separate conversations with the mom and the dad, I asked them the following questions:
- Did they want their 11-year-old daughter exposed to years of torturous, animus and expensive litigation?
- Did they want a judge (who never met this little girl, and probably has no meaningful background in child development) to decide which parent she will live with and when, and how and when the parents will be make decisions on behalf of their child?
- Did they want to spend the next ? months and ? years and a good portion of their marital estate paying lawyers and fighting it out in court while their daughter was suffering from the effects of her parents’ battle?
They each answered with an emphatic and resounding “NO”.
Unfortunately, this couple who once loved each other, built a life together and raised a child together were now in the process of “blowing it all up”. Not because they were getting divorced but because of HOW they were getting divorced. No matter how you do it, divorce is never easy. It encompasses every aspect of a family’s life: social, emotional, financial, logistical and practical. There is fear, anger, hurt and shame—it is part of our human condition and it is to be expected. There are, however, ways to divorce that do not exacerbate and elevate all the negativity and drama of divorce
Through my years of practicing divorce litigation in New York City, I witnessed the emotional and financial devastation that divorce litigation brought on families. Although I still litigate when necessary, it is no longer my first course of action. I litigate in cases that require a judge’s intervention to hold parties’ accountable through orders, sanctions and penalties; for example, abuse, fraud, failure to comply with prior agreements or court orders and lack of transparency. Most cases, do not fall into these categories.
Most family and marital cases can and should be resolved without the cost, delays and lack of control that goes with divorce litigation. My Collaborative Divorce practice has grown exponentially over the past few years and especially this year amidst Covid. In non-Covid times, courts are backlogged, and delays are frequent. During Covid, all the inefficiencies and delays have become more glaring. Fortunately for me, many of my former collaborative divorce clients have been referring their friends and family to me for collaborative divorce because overall, the level of satisfaction of these clients is much better than my litigation clients. The reasons: the collaborative divorce process is generally faster, less expensive and for those who value their privacy, private information and financial records are not in the public record for all to see.
EVEN MORE TO THE POINT, this is a process where the parties, with the guidance and advocacy of their respective lawyers control the timing and outcome of their divorce, not a judge. Perhaps most importantly, unlike litigation, the Collaborative Divorce process supports families in having effective and productive communication. We are future focused on resolution and problem solving not name calling and blame. Each party is represented by their own Collaborative Divorce lawyer who advocates for them by thinking outside of the box in productive ways that reflect a client’s goals and objectives. Additionally, we provide the service of a neutral accountant who works the numbers in an impartial role, plus a trained neutral facilitator who moves both parties along to assist them in communicating in a respectful, streamlined and efficient manner. If there are children involved, the facilitator advises and guides on parenting and timesharing issues. This is essential because even though they are getting divorced, couples with children will always have a connection: graduations, weddings, grandchildren etc.
All this is not to say that Collaborative Divorce is easy or always amicable or calm. That is not the case; it is divorce after all. As in litigation, Collaborative Divorce attorneys zealously advocate for and work hard to get clients the best results possible. The difference is that in Collaborative Divorce, we act as problem solvers and work to resolve cases in ways that are rational, practical and far less devastating, emotionally and financially than divorce litigation. To the extent that I, as a divorce lawyer, can tone down the emotional and financial devastation and drama and instead, advocate for my client while providing a way to divorce that is solution focused, future focused and resolution targeted, I am in.
The mediation I referred to at the start of this piece, is still in litigation. Very often, time is a significant factor to get to resolution when intransigence seems to blind couples to the fact that their hatred for each other is more powerful than their love for their children. I hope that they soon recognize that the future with their daughter is longer than their current animus.
*This is not legal advice but rather general information.