Three Weeks, Three Disparities: From Litigation to Mediation and Collaborative Divorce

Having recently joined the Berner Law & Mediation Group, I have been in the collaborative divorce and family mediation world for three weeks. In those weeks, I observed three key differences that I believe represent the success of collaborative divorce and mediation over litigation.

The voluntary nature of these processes is powerful.  There is autonomy that does not exist in the traditional adversarial legal process.  Litigation is traumatic—filing a formal summons, naming someone as “Plaintiff” and another as “Defendant,” and a “served” event. Those legally required actions are distressing, leaving parties uncertain and fearful of what is to come.  Committing to a collaborative or mediating process creates a mutual understanding that no one wants a Court to determine their future.  This allows the parties to start at a point of agreement and walk into a neutral field together.  This promotes a more accessible space to engage in a conversation.  This is as opposed to having no control over the process (litigation), which is akin to entering a minefield, uncertain of where to step.

In collaborative and mediation conversations, the language used differs, and language can make all the difference.  “Parenting time” replaces “custody” or “visitation” and “cash flow” replaces “child support” or “alimony.”  Calculating the amount of money to be exchanged is a needs-based approach rather than income-focused. With far more neutral language and a framework that looks at each case as a family and not as a docket number, the attention can remain on the relationships, problem-solving, and the future.  This is all better than imposing jargon and a frame that one person needs to win and the other needs to lose.

There is an opportunity to begin the healing process. Dealing with conflict head-on with your spouse is painful and difficult, but allowing emotion into the conversation is a required part of moving forward.  I cannot count how often, as a litigator, I have either overheard or told a client or an adversary to calm down or put aside their feelings.  In the mediation and collaboration spaces, there is a value to the tension and the emotion.  Emotions are essential to figuring out what is important to each person.  These moments are vital because identifying what irks them or affects them allows a pivot to occur, shifting them from conflict and into a solution.

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