Alternatives to Divorce Court
Divorcing partners choose among alternatives to divide assets and liabilities and create a parenting plan. The preferred approach to the divorce transition depends upon the level of conflict between the partners. Generally, higher levels of conflict require more intensive professional interventions.
1. Kitchen Table Negotiations. A small percentage of divorcing partners sit down with a cup of coffee or glass of wine at their kitchen table, discuss options, and choose solutions. They go to the courthouse or online, get the necessary pleadings, and file and finalize their divorces. This solution works best for parties with high esteem for their partners, who communicate well, and have little at risk regarding finances or parenting in the separation. Some partners elect to represent themselves in their divorce proceedings, which is called being pro se. If you make this choice, you may want to review the instructions and family law forms contained at the King County Superior Court Facilitator's website.
2. Facilitative Mediation. Cooperative partners may ask a neutral professional to help them negotiate. The mediator sits down with both parties, helps them communicate, and guides them to agreement. The mediator provides no legal advice to either party. If the mediator is a lawyer, he or she may draft necessary pleadings expressing the agreements of the parties. As the facilitative, face-to-face mediation proceeds, the partners may employ the services of one or more collaborative professionals in their negotiations: a child specialist, a certified divorce financial analyst, or a divorce coach. Mediated solutions work best for parties who communicate well, think independently, have balanced power in their relationship, and are comfortable with moderate risk.
3. Collaborative Process. The separating partners agree they must avoid court, though they cannot reach agreement on other issues at present. Each hires a collaboratively trained lawyer. Together, the marital partners hire other neutral professionals as needed: a divorce coach, a child specialist, a divorce financial specialist, and possibly a vocational specialist and other allied professionals. The parties negotiate face to face, aiming at their highest and best goals. Good faith, full disclosure, and transparency are the rule. The partners drive the pace and direction of the negotiations. The attorneys and other professionals manage the collaborative process. If the collaborative process were to fail, all the professionals involved must withdraw, and cannot be called as witnesses. Both parties must seek other attorneys. This solution works best for parties who experience some alienation and power imbalance, but still credit the essential good faith of their partner. They want to respect the other party, and maintain extended family relationships and circles of friends. Partners with deep concern for the well-being of their children frequently prefer collaboration.
4. Shuttle Mediation. Partners who cannot agree hire attorneys and a mediator. Each party sits with his or her attorney in a separate room. One side makes proposals. The mediator shuttles from the proposer to the opponent and makes all reasonable arguments, legal and otherwise, why the opponent should accept the proposals. The opponent counter-proposes, the mediator shuttles to the other room, and makes the opponent’s arguments. Eventually, the parties may “agree,” which means they accept compromises they deem preferable to further negotiation. This process works best for parties who reach deadlock, but want to avoid the delay, publicity, and expense of litigation.
5. Arbitration. Partners who cannot agree hire attorneys and an arbitrator, who acts as a private judge. The parties present their positions and evidence in a mini-trial. From the arbiter, both marital partners get a decision they did not choose but (hopefully) can accept. This process works best for parties who cannot agree, but want to avoid the delay and publicity of trial.
6. Trial. Partners who cannot agree or elect other means of conflict resolution let the public courts decide their matter. Each side presents evidence to a superior court judge according to the civil rules, and all the evidence is subject to criticism by attorneys and the bench. This process works best for parties whose high conflict relationship, domestic violence, substance abuse, psychological problems, or psychiatric disorders preclude settlement by a less dire process.
Brad and Kim believe that partners who can settle at the kitchen table and partners whose problems demand public judicial intervention will not profit from a collaborative process. All others benefit from a collaborative divorce process. And all are damaged by a litigated resolution.