Options to Adversarial Divorce: New Focus on an Often Flawed Process

October 20, 2010

Contested divorce, marked by a hyper-formal courtroom atmosphere featuring indirect spousal communication, dueling intermediaries and a third-party decision maker, has long been the dominant process for ending marriages in Virginia and elsewhere throughout the United States.

Although it certainly works for some, for many others - couples with widely varying family, financial and other relevant circumstances - the attendant costs, both immediate and long-term, are being increasingly questioned. It is no small secret in American life that a litigated divorce outcome typically exacts a large toll in time, money and family relationships.

That realization has led to a diminution in the perceived value of a "traditional" divorce in the minds of many separating spouses. In tandem, it has brought an increased appreciation for divorce alternatives that allow for greater couple autonomy in the process and an abatement of the friction and loss of control that are often associated with a court proceeding.

At the forefront of new choices are three processes that are positioned centrally in the ambit of what is commonly referred to as alternative dispute resolution ("ADR"), namely, divorce mediation, collaborative divorce and the judicial settlement conference program. Related yet distinct, these devices all share common underlying goals, chiefly the following:
- Greater decision-making control to the participants most intimately involved
- Potential savings of time and money when compared to litigation
- Pronounced focus on dignity interests and flexibility
- A healthier post-divorce relationship
- High compliance rate, given the parties' personal input

Following is a closer look at each of these potentially useful mechanisms for couples contemplating divorce in Virginia.

Divorce Mediation: Use of a Trained Neutral Party to Foster Agreement

Divorce mediation is encouraged by Virginia courts, and in matters involving custody and visitation, the statute uses the impetrative "Mediation shall be used as an alternative to litigation where appropriate." Va. Code. Ann. Section 20-124.2(A). Highlights of the process include the following points.

First, there is a strong stress on a dispassionate, neutral and private setting that will promote candor and direct communication between the parties. Mediation is a collaborative process and, in a fundamental sense, antithetical to litigation: There is no judge and, absent a mutually signed agreement following participation, there are no binding obligations. The parties must also agree that nothing disclosed in mediation may be used later in litigation. Second, a trained and unbiased mediator works on behalf of both parties to help them set expectations and define issues, with the parties thereafter collecting relevant information, brainstorming, negotiating and, often, reaching a mutually agreeable settlement. Third, while some couples eschew using attorneys altogether in mediation, their presence is certainly not disallowed. In fact, mediation generally welcomes the input of lawyers as advisers, with attorneys for either or both of the parties often serving a useful role in defining and protecting rights, reviewing documents and helping clarify settlement terms. Divorce mediators themselves are sometimes attorneys, although they do not wear that hat during mediation and do not represent either party as an attorney.

Collaborative Divorce: Use of Non-Neutral Attorneys, But Court Is Not an Option

The "Participation Agreement" signed by a couple and their lawyers in a collaborative divorce process sets forth the key difference between this ADR vehicle and divorce mediation. Although there are many similarities between the two (shared emphasis on non-adversarial atmosphere; focus on reaching a negotiated outcome), the platforms differ in this fundamental respect: With collaborative divorce, each party retains an attorney in a role that more closely approximates typical legal advocacy. That is, each attorney actively represents - not merely advises - one of the parties in the process. Moreover, there is no unbiased third party - i.e., a mediator - at the center of the process.

That latter omission, though, does little to diminish the common aim of promoting a cooperative setting, since the lawyers' role is still readily distinguished from traditional courtroom adversarialism. In a collaborative divorce, the attorneys actively seek to promote fairness and the resolution of differences, with fundamental allegiance owed as much to the process as to their individual clients. Proof of this commitment to a non-judicial settlement is borne out by the following fact: If collaborative divorce does not yield a settlement, the attorneys and all other professionals who might be assisting in the process may be barred by the Participation Agreement from participating in any future litigation.

Again, what happens in the collaborative process MAY NOT be used by either party if the process breaks down and no agreement is reached. Of course, should any criminal acts be brought to light, they would not be protected by the terms of the Participation Agreement.

Judicial Settlement Conference: Soliciting the Proven Experience of a Judge

Virginia instituted this program in 2003 to provide couples with the input of retired judges with many years of experience handling cases involving divorce. The Judges bring that experience to the table in an informal manner, allowing them to offer personalized ways of addressing the issues the couple face. The program is voluntary, with the parties having no obligation to settle, even if they are referred by an active judge to the settlement conference. Key points of the program include the following:
- Process is informal, non-binding and at no cost to the participants
- Retired circuit court judge evaluates the case and guides parties toward settlement
- Parties receive experienced assessment regarding the potential risks of litigation
- Conference is confidential, with nothing discussed or prepared therein admissible at trial

Conclusion

The traditional litigation route in divorce proceedings has proven to be deficient in many respects for an ever-increasing number of couples in Virginia and elsewhere throughout the country. It is typically costly, time-consuming, rancorous and impersonal, as well as being marked by a divorcing couple's loss of autonomy and control over the process.

Various ADR techniques have evolved to address these shortcomings. Divorce mediation, collaborative divorce and the judicial settlement conference program are at the vanguard of this development, given their emphasis on cooperation, flexibility and mutually agreed settlement.

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