“My model for business is The Beatles. They were four guys who kept each other’s kind of negative tendencies in check. They balanced each other and the total was greater than the sum of the parts. That’s how I see business: great things in business are never done by one person, they’re done by a team of people.”
– Steve Jobs
The event of a divorce presents a problem to be solved. The court system sets up the default of litigation as the problem solving method. By litigation I mean the taking of depositions, the production of documents, the subpoenas, and the temporary hearings that precede the actual trial of the dispute before a judge. A question arises: Is litigation the most effective model for solving the problems presented by divorce?
One thing can be agreed upon: litigation is the most expensive method of divorce problem solving from the client’s point of view. The point of this writing is to bring other models of problem solving to the awareness of those going through the divorce process. The first of these models is the mediation model. The courts now require mediation in family law matters before any substantial litigation can unfold. With mediation, the lawyers choose a mediator. The mediator is typically a seasoned divorce lawyer. The mediator shuttles between two rooms, each room containing a party and that party’s lawyer. Mediation has become a well- used tool in the hand of the family law practitioner.
In conjunction with mediation, Collaborative law is becoming increasingly implemented to solve problems in the context of divorce disputes. In this model, the lawyers and clients sign an agreement to collaborate using the services of joint experts. In the event no agreement is reached, the lawyers must withdraw from representation, and the clients proceed to litigation with a new set of lawyers.
Collaborative law as a model compares favorably to the litigation model. With litigation, the parties are adversaries. This model presents challenges for parents of children who must deal with each other in the raising of their children once the dust of the litigation has settled.
The Collaborative model has as one of its precepts the idea that no court papers will be filed until either an agreement is reached or the collaborative process fails. The greatest advantage of this process is its collaborative nature. That is, unlike litigation, the lawyers are not adversaries arguing a side of a case. Rather, they engage in a problem solving exercise, collaborating with the joint experts.
When parties are not comfortable with the requirements of a formal Collaborative agreement, they may still agree to a cooperative divorce. That is, they file a case like any other divorce case, but agree to cooperate in discovery and in the use of joint experts. In any event, for most people, the litigation model should be the last resort in resolving their divorce.