The initial choice a prospective client must make after deciding to pursue a divorce is the process that she or he will use to address decision-making related to child custody, property distribution and cashflow (child support, spousal support, temporary alimony and alimony). The four basic family law process options currently available are kitchen table or pro se negotiations, mediation, litigation/arbitration, and collaborative law. There are many variations of each of the foregoing options, but for simplicity each will be considered in its basic form.
Prospective clients come to the initial divorce consultation with a variety of questions and goals, most of which focus on gaining a basic understanding of the procedures and law related to the specific issues she or he has identified as most relevant to the circumstances. Often clients are not aware that there are divorce process option choices. It is our responsibility to sufficiently understand the options to enable us to communicate them to the client as a first step in our role as legal counselor.
In the kitchen table process, the unrepresented parties negotiate and resolve the terms of their separation and divorce based on their personal standards of fairness rather than legal rules or guidelines. They may file documents pro se or obtain legal assistance for this limited purpose. Potential benefits of this process include avoidance of costs other than filing fees, maintaining privacy and control over decision-making, and the ability to combine and consider issues which are typically separated in or excluded from the legal system, such as the isolation of child support calculations from property distribution or the practical exclusion of marital misconduct from property distribution or custody. Disadvantages include the high level of interaction between the parties without guidance or safeguards, communication barriers, potential power imbalances and lack of information concerning legal rights or obligations.
The mediation process is conducted by a neutral third-party mediator using either a principled or positional negotiation model, or some combination of both. Principled, or needs-based negotiations, involves identifying the needs and goals of each party and attempting to create options for resolution that satisfy most, if not all, of the interests of each. In positional negotiations, each party states a position or proposal and each then compromises to reach a point in between. The parties may or may not be represented by attorneys and sometimes consult only with legal counsel to prepare for sessions or to review settlement proposals. As an advantage, the mediation process permits the parties to chose the standard for decision-making, whether it be reliance on legal rules and guidelines, a nonlegal personal sense of fairness or a combination. Mediation also allows the parties to maintain control over decision-making, to consider creative options for resolution and to address nonfinancial issues that would not be considered relevant under the law. Further, there is an opportunity for the parties to achieve resolution in a cost and time effective manner. On the other hand, in some circumstances, the lack of mandatory deadlines (such as scheduled hearings or other proceedings) may create frustration on the part of the more forward moving party, and the lack of legal guidance (if either party is unrepresented) may be a disadvantage to the less informed party as the Mediator is not permitted to provide legal advice. The mediation process may also not be appropriate when there is a power imbalance or history of abuse between the parties.
The process which is the most familiar to prospective clients is the traditional court-based or litigation process. Arbitration, as simply a private form of the litigation model, is included in this process option as the characteristics are similar. In this option, the judge (or arbitrator) is the ultimate decision-maker. Each party is usually represented by an attorney and the sole standard for decision-making is the statutory and common law. In the court system, each divorce related issue is addressed in a different sub-system: equitable distribution of property is usually handled through a divorce master and then by a judge if necessary, child custody is determined through custody conciliation or custody master proceedings before resolution by the court and cashflow issues (child support, spousal support, temporary alimony and alimony) are delegated to a domestic relations office for resolution prior to disposition by the court. This fragmentation of issues results in the involvement of different officials and judges in varying aspects of the same family's case. Most cases initiated in the court-based system are not ultimately resolved by the court but are negotiated to resolution prior to hearing. In this type of positional negotiation, the parties exchange proposals and counter-proposals in an effort to work toward a compromise between the positions of each. Of this type of compromise it is often said that a perfect resolution is one in which both parties are equally unhappy with the result. Potential advantages of using the court-based or litigation process option include a definite decision by a third party authority figure (judge, master or other hearing officer) within an established time period, although extensions and delays may be rampant. Also, this system substitutes the lawyer-advocates for the parties to a larger degree thereby reducing direct interaction between the parties. Nonmonetary, emotional or other "soft" issues are largely disregarded in this system which for some parties may promote safety, and even the ability to "move on" post-divorce. Disadvantages may include the same factors for other parties disregard of emotional issues may inhibit the ability to resolve painful issues and move forward productively, especially in co-parenting. The unpredictability and expense, both in terms of time and financial resources, inherent in the system may also be perceived as a downside to this option. Lack of control over decision-making in litigated cases and the necessary compromise between positions in negotiated cases may also be negative factors.
The fourth process option, collaborative law, has been available in Pennsylvania for over 15 years. However, it is possibly the least familiar option to prospective divorce clients. In the collaborative divorce process, each party is represented by his or her own specially trained lawyer, whose only job is to assist the client in achieving an out of court resolution of all issues in a manner which meets the client's needs, interests and goals. The parties sign an agreement not to go to court for decision-making and if either party leaves the collaborative process, both attorneys are disqualified from further representation. This ensures that all participants are focused on high quality resolution without threat or pressure driven concessions. The principled (or interest-based) negotiation model used in this process focuses first on identifying both parties needs and goals and then generating creative options to satisfy those interests. Decision-making is not determined by legal rules and factors but by the parties' interests and goals unless the parties choose to resort to legal principles as their standard for a given decision. Collaboratively trained mental health and financial professionals play a valuable role on the collaborative team as communication coaches, child specialists and neutral financial consultants. In essence, the collaborative process combines the protections and strengths of legal representation with the most effective aspects of mediation to create the opportunity for creative problem solving. The resulting outcomes are most often win-win solutions that meet the needs of both parties and the family as a whole. An advantage to the collaborative process is the ability of the parties to maintain complete control over decision-making, thereby reducing the extreme anxiety many clients experience in anticipation of an unknown and unavoidable intolerable result. Another significant advantage is the high quality of the resolutions and therefore, client satisfaction, resulting from creative option generation based on the parties' needs and goals. Other advantages include continual access to legal counsel and information and guidance with regard to communication techniques and managing the emotional aspects of the divorce as related to decision-making. The collaborative process can be less costly in terms of time and expense, as the parties have more control over their participation in the divorce process. Disadvantages may include the greater degree of contact and interaction between the parties in the negotiation meetings and the process may not be appropriate in cases involving a history of abuse. Further, the absence of court-imposed deadlines, the lack of a decision-making authority, and the inclusion of nonfinancial issues in the exploration of each party's needs and interests, may cause frustration to a party who desires to move forward more quickly that the other, does not want responsibility for decision-making, and seeks to avoid addressing the emotional aspects related to the divorce.
In light of the unique needs each client brings to the family law arena and the fact that the selected process itself can significantly impact the outcome, it is essential that we are equipped to explain each process option at the initial consultation and assist the prospective client in identifying the advantages and disadvantages of each process relevant to her or his particular circumstances.
