This article first appeared in the Boulder County Business Report, October, 2003. Reprinted by permission from the author, Boulder Divorce Attorney Bert Dempsey. Subtitles are mine.
The time during a pending divorce is one of the most stressful and painful times in anyone’s life. The fear, conflict and anger can nearly paralyze a person’s actions and thought process. People react to this stress in many different ways. Some gather themselves together and are at their best. Others feel attacked and react from fear.
Some divorcing couples can sit down together and negotiate difficult parenting issues and the division of their property. Others need to make the trip to the courthouse, where they believe justice awaits. For a growing number of people who feel they need assistance with their issues but have no desire to litigate, mediation and collaborative law can be the best solution.
In the process of mediation the parties meet with a neutral third party who can direct them through a structured negotiation on all of the issues that must be addressed and agreed upon in the court documents. The mediator can identify issues that may need an expert, such as financial division and parenting matters, and advise the parties to seek professional advice before going on. A mediator’s roll is to provide neutral ground and structure for the process, but mediators cannot give legal advice to either party.
In the collaborative divorce process, each party has their own legal representative, so neither party feels they’ve been left to go it alone. The divorcing parties, their attorneys, coaches and financial advisors commit themselves to resolving the financial and child related issues through negotiation without resorting to court proceedings. Settlement is reached during a series of four-way conferences (husband, wife, and each of their attorneys). As needed, the parent [advisors], coaches and financial planner participate in the process.
Attorneys who specialize in collaborative law receive training which emphasizes effective communication, cooperative negotiation and creative problem solving. Many attorneys who participate as collaborative attorneys also have years of experience as mediators.
If during the process there are issues that the parties just cannot resolve they may be submitted to an arbitrator or a retired judge for a decision. This preserves the integrity of the collaborative process and eliminates court intervention. If it is truly not possible to reach an agreement, the parties are free to terminate the collaborative process and go to court.
One party’s decision to terminate the collaborative process means that both attorneys and all experts previously involved in the case are released. The collaborative process, therefore, has a built-in incentive for everyone concerned to continue to work to find an agreeable settlement. It also means this process is not for everyone. A solid commitment working through the issue is essential.
Author: Bert Dempsey has been practicing law for 25 years and has been a mediator since 1996. He attended the first collaborative law training in Colorado in 2001. He can be reached at 303-554-1415.