For a Better Divorce: Understanding the Uniqueness of Collaborative Divorce and Mediation

August 16, 2019

Collaborative Divorce and Mediation are unique approaches to help divorcing couples reach an optimal divorce settlement. For the uninitiated, however, what that uniqueness is may not be clear. After years of practicing and teaching mediation and collaborative family law, I have formulated 4 aspects of how this approach indeed represents a unique method in helping couples reach the best outcomes possible in their divorce.

4 people sitting at wooden desk with notebooks

#1 – HOW WE VIEW DIVORCE

The traditional legal framework views divorce literally as the “dissolution” of a relationship, as the end and the termination of the family. Collaborative professionals (which include mediators) understand that even if a couple is going through a divorce, there are still relationships that need to be preserved. Where there are children involved, this message is crucial in helping children (not to mention parents as well) survive and ultimately thrive beyond the divorce, as being part of a family plays a crucial element in one’s sense of self, value and identity.

Collaborative professionals understand that divorce is not the end of the relationship, but a restructuring and reorganization of the family. The family remains. With this framework, Collaborative professionals are not just focused on getting a deal, but are mindful of the relationships – both during the divorce process as well as for the many years after this difficult transition in the family.

#2 – HOW WE DEFINE SUCCESS

Standard law school education and traditional legal training defines success (or “winning” a case) based on getting the “most” for one’s own client and, thus, the “least” for the other client. This is based on a zero-sum game, where winning for one side is the hallmark of success. But how does that apply to a family, to two parents who will have to co-parent their children and who are committed to their children’s welfare and best interests? Is one parent the enemy? Does one parent have to destroy the other?

Collaborative, by its very definition, does not seek outcomes in this “either/or” framework, but acknowledges that both sides have legitimate needs and concerns. Collaborative negotiations and mediations are about problem solving, and should not be driven by fear, positioning or strategic posturing. The goal of collaborative divorce is how can we reach an outcome that addresses the needs and concerns of all family members – as much as possible. Resources are almost always limited. Time with our kids is just never enough. But making all attempts to jointly address all family members’ needs and concerns is the surest path to reaching that goal – as much as possible.

#3 – HOW WE VIEW THE ROLE OF THE CLIENT

In collaborative practice and mediation, clients are not bystanders watching the professionals work out the future and fate of their family based on theoretical legal principals or arcane court procedures. Rather, mediation and collaborative clients are intimately involved in every step of the way and in every aspect of the settlement process. Collaborative divorce is a client-centered process, not a lawyer- centered process and certainly not a court-centered process.

Divorcing spouses are not seen as enemies pitted against each other in a lawsuit. Collaborative clients are the masters of their own destiny, determining what their new family structure will look like. The clients are the protagonists. They are the experts for their own family, and decisions are made based on the values and priorities of the clients – not of the lawyers, and not of the law. Collaborative professionals merely serve as guides, supporting client autonomy and their self-determination.

#4 – HOW CAN WE HELP

Years of experience have brought humility to the divorce professional. There is a limit to what one person can do to help a family through the difficult transition of a divorce. We realize that divorce is not just a legal event, but a multi-dimensional transition. It is obviously an emotional transition; it is a parenting transition; it is a financial transition. Instead of having one professional focus on all these dimensions, we have learned that the best way to help a family is through interdisciplinary expertise.

In sum, while 99% of divorces are settled without a court-imposed decision, collaborative divorce is unique in that it (1) helps the family (remain a family) (2) helps reach successful outcomes for all members of the family, (3) based on what is important to each client (and their children), (4) with the assistance of professionals who offer different specialized expertise in the multi-dimensional transition of divorce.

The values and approach described in this article is exactly how we work at Berner Law & Mediation Group. We have convenient offices in New York City (Manhattan) and Northern New Jersey (Hackensack, Bergen County) and would be happy to answer any questions you have. For more information about how we can be of help to you and your family during this challenging time, please contact us. Let our expertise be of service to you and your family.


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