Is The Alternative to Killing Each Other The Solution to a Family’s Problems?

Taking your divorce disputes in front of a judge is not always the best method of reaching a satisfactory solution. Consider the Collaborative Divorce approach instead.

by Sandra Joan Morris, Certified Family Law Specialist; Member, American Academy of Matrimonial Lawyers
Seltzer Caplan McMahon Vitek

Courts evolved long ago to provide an alternative to self-help and violent solutions to San Diego Divorce Attorney Sandra Joan Morris can help with your Collaborative Divorce 858-472-4022disagreements. Both sides submitted their positions, and a Solomon decided how to resolve the dispute. Determining a property boundary, or allocating fault and awarding funds might not go too badly, but dividing up a baby or deciding deeply personal issues, can. Resorting to litigation and court is a default position, the one last thing to try when all else fails, short of the self-help we call taking the law into your own hands. The question is, is court the best way to solve problems? It took me 44 years as a trial lawyer, but I have come to see that the alternative to settlement is litigation, not the other way around. And of the settlement methods I have used in the last two years, Collaborative Process has proven to be the most successful.

We have come to look at court suits and litigation as the inevitable recourse for a solution, forgetting that it requires turning over to a stranger who does not know you, your life, your family, or your history, the control of what will happen next.   That stranger may have little or no knowledge, experience or interest in your area of the law, or even in judging.   That stranger may have biases, implicit or explicit, that no one knows about, that will affect their own perception of what they see and hear.

There is the fantasy and misconception that somehow a judge will be able to determine the true facts and make the right decision based on the correct interpretation of the law. The reality is that there are no true facts as to events, there is only the perception of the facts. Over 2,000 innocent prisoners so far have been released from incarceration based on subsequently discovered scientific evidence, because witnesses misremembered, misidentified, didn’t see things correctly, and juries and judges erred. The Rashomon effect is described as the contradictory interpretations of the same event by different witnesses to it. It does not require that the witnesses have an evil intent or desire to lie. The case books are filled with cases that were judged incorrectly or in which the law changed unexpectedly.

Trial lawyers know that everything is perception, and they know that their job is to create in the judge a perception of a narrative that helps their client in court. It may not be true, but it will look and sound true.

This requires the parties in a litigated matter to state their case to the court in the way that is most helpful to themselves, and the least helpful to the other side. The judge then tries to figure out which person or witnesses sound the most like they are telling the truth. This is all done in a public forum for all the world to see and hear. In family court the process usually takes two to seven years, and a lot of money in fees, to conclude. Litigants on the opposite sides of a case do not like each other better after this process. It is asking a lot to expect that after it is over, the two parties will somehow be able to put the case behind them and go forward to co-parent children, or show up at family events at the same time, in a civil and respectful way.

There are better ways to solve problems than merely an alternative to violence. There are ways to reach creative solutions that work for the family going forward in a humane and respectful way. There are more economical ways to conserve resources for your families, rather than providing them for your lawyers’ families. I used to tell my litigation clients, you can send your children to college and settle this case, or you can send my children to college and litigate it. The better way to solve the problems is through a negotiated settlement. This can be facilitated by sitting down and talking, or having the assistance of a neutral mediator, or through the team approach of the Collaborative Process.

The least well known to most people, but the most effective, is the Collaborative Process. The reason why it is so effective is that all of the persons on the teams are trained the same way, and are dedicated to using their different skill sets to helping the parties reach their own informed settlement based on their respective needs and interests. The parties are in control of the outcome, and are assisted by the Collaborative teams to arrive at solutions.   It is a confidential, respectful process that empowers both parties. It rarely takes more than a year to complete, and the cost for the assistance of all of the team participants is far less than the fees and costs of the litigated case. The parties leave this process feeling intact, and with skills to assist them if they need to interact in the future to work through new issues that might arise.

Collaborative Divorces Save Money

by Sandra Joan Morris
CA State Bar Certified Family Law Specialist
Past President, American Academy of Matrimonial Lawyers

How expensive is the collaborative law process compared to other methods of resolving cases? As a family law trial attorney, I heard for years that the collaborative process is much more expensive because if it ends, the team members are off the case. However, my experience is that the collaborative process is usually quicker and less expensive in most cases, and much less expensive in complex cases, than other methods.

Even if fighting it out at the courthouse was a good way of resolving problems, at this time the lack of funds and important resources for the court system make litigation drawn-out, expensive and inadequate. In law cases, what takes time, costs money. For this reason alone, more and more litigants are looking for ways to resolve their cases without resorting to the court system.

Collaborative Divorce Saves Money

Collaborative divorce can save time, and time in money in legal proceedings

Any alternative to litigation could cost more if it fails, since you have to add its cost to the cost of going back to, or starting, litigation. Even if it succeeds, it could still cost more money if it took a lot of time to resolve. However, because both parties control the outcome, and in a far less acrimonious way, the benefits are immeasurable. Some judges say that if both parties go away upset, it was probably a good decision. The collaborative process strives to have the parties reach a resolution that is a win for both of them.

Mediation and settlement conferencing are the most common current alternatives to litigation. Both usually take place after all of the financial information has been provided (the “discovery” phase of the case,) and both often represent a last-ditch effort at resolution, frequently on the steps of the court house. Unfortunately, getting to this level of knowledge is usually the most expensive part of a family law case.

In a complex, high asset case where a lot is at stake and a lot is disputed, this phase can go on literally for years. This process is polarizing. By the time it is done, the parties are even angrier and more distrusting than when it began. Sometimes the lawyers are, too.

By contrast, the collaborative law process starts at the very beginning of the case. The  financial expert on the team gathers all financial information in an informal but thorough way. When you agree to the collaborative divorce method, you agree to cooperate by providing this information, and if needed, access to your personal financial advisors.

Within months, not years, the financial expert has all of the needed information, and can provide reports on matters such as how much income is available to pay support and what is the marital standard of living. The financial expert can promptly arrange for the appraisals of personal and real property.  The economic and time savings in the costs of discovery is enormous. You have saved time, and therefore saved money.

Even if the collaborative process ends before there is a settlement, the financial documents that the neutral financial expert got can still be used. All or portions of the reports of the financial expert also can be used if both parties agree, which can help to narrow the future issues.

Most litigated cases take at least two years to complete and get to trial or settlement.  Many take far longer. At that point the “back-end” (after discovery is complete) mediations or settlement conferences can take a few sessions, but I have had complex cases that have taken a year or more to resolve in mediation or settlement conferencing. On the other hand, my experience in collaborative cases is that they usually conclude in just over a year.

The collaborative teams include a mental health professional coach for each party, an attorney for each party, a neutral financial expert and, if needed, a neutral child specialist.  Litigated cases usually have an attorney for each party, a financial expert for each party as well as possibly a neutral expert, a custody mediator and perhaps a custody evaluator. Not only are there fewer professionals in the collaborative process, but they do not overlap their work and are united in being solution-oriented. The addition of the collaborative coaches is a very valuable component. Coaches help the parties to learn to communicate more effectively and productively, which allows them to focus on their settlement issues. The education they provide is invaluable both for the settlement process, and after the case is over.

Does a collaborative divorce cost more? Since it saves time, discovery expense, and emotional stress and exhaustion, my answer is “no.”