One of the most prominent myths that new client bring to an initial meeting is that getting divorced means going to court. That is not true. In North Carolina, it is entirely possible to get a divorce and resolve the related legal issues of a divorce without ever stepping foot in a courthouse. While only a judge can divorce a couple in North Carolina, the legal issues surrounding a divorce (financial support, property division, co-parenting) can be resolved in at least six different ways.
Couples can resolve these issues through direct negotiation, Collaborative Law, attorney negotiation, mediation, arbitration or litigation.
I have listed these options in descending order of client control; that is, the client has the most control over the outcome in direct negotiation with their spouse/ex-spouse and the Collaborative process, and the least control over the outcome in arbitration and litigation.
Direct negotiation occurs when the parties simply try to resolve their legal issues themselves without the help of attorneys, judges or other third parties. Most couples are unable to do this effectively because of the emotions involved and the lack of substantive knowledge about the issues at hand. Even couples that are able to effectively negotiate with each other face legal traps that can present problems. Direct negotiation has the advantage of placing control over the outcome the parties’ hands. But, its disadvantages typically make it impractical or impossible.
Collaborative Law is very similar to direct negotiation in that is places almost all of the control over the outcome in the hands of the parties. But, it has distinct advantages in that it involves attorneys and other experts that have the substantive knowledge of the law, finances, taxes and other areas necessary to fully address the issues. And, the Collaborative process provides a structure for the negotiations so that the parties can communicate more effectively. In addition, Collaborative Law is generally less expensive than the other options. Perhaps most importantly, the Collaborative process teaches the parties to communicate in a productive, respectful and reasoned manner. This benefit cannot be overestimated, especially for clients that will be co-parenting children in the future.
One of the most historically popular means of resolving a case is through attorney negotiation. In this process, each party hires an attorney to negotiate for them. The lines of communication between the parties is broken by the attorneys. Each party provides directives to their attorney. The attorneys then negotiate with each other on behalf of their clients. Because the attorneys are communicating, and not the clients, the parties lose some control over the end product. Tone, emphasis and other important aspects of the clients communication get lost by the time it reaches the opposing attorney’s ears. And, because attorneys are involved, the cost of each email, letter and phone call increases the cost to the parties. Further, this process does not teach the parties to communicate effectively because they are using their attorneys to communicate for them.
Mediation was the first attempt to reduce the amount of litigation in family law and divorce cases. This process remains very popular today, and is mandatory for many cases filed in North Carolina. Mediation involves a conference in which the parties and their attorneys meet with a “mediator” to try to reach a resolution of the legal issues. The mediator is typically another independent attorney. Mediation places most of the control over the resolution in the hands of the party. In fact, no one is required to agree to anything at mediation. However, typically, the attorneys and the mediator conduct most of the negotiation at mediation. The mediator’s role is to help encourage the parties to resolve the legal issues by pointing out the benefits of a settlement and by pointing out the strengths and weaknesses of the parties’ arguments. The mediator does not and cannot decide anything for the parties. While mediation is a vast improvement over litigation, it still involves indirect communication between the parties. Therefore, it does not teach the parties to communicate with each other. While mediation can and frequently does solve the immediate legal issues, it does not lay the foundation for productive future communication between the parties. In fact, mediation typically involves the kind of strong arm negotiating tactics that create bitterness and resentment.
Arbitration is essentially an informal trial. Instead of a judge, a neutral third party (usually an attorney selected by the parties) makes decisions for the parties. This process is designed to save a lot of the time and expense involved in a formal court case. Arbitration is a good option when the parties are totally unable to communicate, but do not want to spend the time and money that a court battle requires. However, arbitration take control over the resolution out of the parties’ hands, and places it in the hands of the arbitrator. The arbitrator does not know the parties, their children, their history, their personalities or any of the other things that should be considered in resolving family disputes. The arbitrator only knows the facts that are presented in the hearing. Like litigation, a stranger makes decisions for the parties and their families.
Litigation takes control of both the resolution and the process out of the parties hands and places it in the hands of another stranger, a judge. No matter how well educated, experienced or well meaning a judge, the judge is still a complete stranger to the parties and their family. Further, the judge’s main concern is fairness, as opposed to what works best for a particular problem. A judge has at most a few days to learn everything they can about a family before making a decision. In my experience, even the “winners” in these cases leave the courtroom unhappy because of the inconvenience and disruption that a judge’s decision creates. The only benefit to litigation is that a decision is made and the process (usually) comes to an end. Litigation leaves attorneys wealthy, clients poor and families unhappy.
A very small percentage of my clients choose litigation or arbitration to resolve their family law issues when they are presented with the above options. Most choose attorney negotiation or mediation. However, a growing number of people across the country are choosing Collaborative Law, and reaping the long term benefits of their decision.