Unlike in years past, clients now have many choices for how to handle a family law matter. Should they use the traditional adversarial method, engage in collaborative or cooperative process, or choose mediation to resolve their issues? This article gives a brief overview and the pros and cons of each choice when selecting an approach to resolving family law cases.
Usually, parties will select the type of approach to use to the family case at the beginning. While it is possible to switch during the case from one type to another, it is not possible to change from collaborative to adversarial without changing attorneys. It is also unlikely that, once parties have started an adversarial case, they would switch to one of the other approaches.
Most clients are familiar with the adversarial – or traditional – process to resolving divorce, post-judgment, or other family law issues. In this approach, the zealous advocate for each client engages in discovery, negotiates for the best outcome in light of what a court would do, and handles a contested trial on the issues in dispute, if needed.
This approach is not only expensive, but can have lasting effects on the parties, their children, and the ability of the family unit to function post-divorce.
The vast majority of family law matters settle, however, so alternative approaches were developed in response in part to the contentiousness of the adversarial process.
The collaborative process is meant to avoid the knock-down, drag-out approach that can occur in adversarial cases. In a collaborative divorce, the parties and attorneys agree not to use the courts to resolve differences, but, if needed, work them out using neutral experts for financial, child-related, and other issues.
The collaborative process requires that the parties agree up front that they will:
settle instead of litigate;
not use formal discovery, but freely exchange financial and other information; and
use neutral experts, such as a child specialist, financial expert, shared business evaluator, or appraisers.
Also, parties agree up front that, if the collaborative process is not successful, both collaborative attorneys will withdraw, and the parties will hire new trial counsel.
The cooperative approach to family law matters was developed in part because it is costly for attorneys in a collaborative divorce case to withdraw when they have a wealth of knowledge about a case.
Cooperative divorce uses similar methods to the collaborative process – in the free exchange of information and in avoiding litigation – but if the process breaks down, the attorneys can stay on the case as the trial counsel. Most good family law attorneys take a cooperative approach even to adversarial cases.
Mediation is used in many contexts. In divorce, it is used more frequently as a method to negotiate the issues when the parties are pro se. Mediation is required in custody and placement disputes. This type of mediation usually occurs without attorneys present and through court appointed mediators.
Mediation is also frequently ordered or agreed to in adversarial cases when a case is ready for trial, but the parties may be able to resolve some or all of the issues using a trained third party neutral to help them negotiate.
It is also becoming more common for unrepresented parties to hire a mediator to assist them both in reaching a settlement and in drafting a final agreement. This is now permitted under Wis. Stat. section 20:2.4(c)(1).
Seeking the Best Process
So, which process is best for your client's case or issues? Some basic truths apply.
First, if you need discovery because a party will not freely give information or you need to subpoena documents, then select the adversarial approach. The traditional approach may also be best if you have a novel legal issue that requires a court to advance or clarify the law.
The collaborative approach works well if the parties are civil enough to each other to be able to sit together with counsel in the same room and solve problems. It will not work well if the parties cannot communicate civilly or there is a party who lives out of state.
A collaborative approach can be difficult, but not impossible, if there are domestic violence issues (and is certainly not acceptable if there is an injunction.) The collaborative process can also be difficult if there are serious AODA or mental health issues. You may need the traditional approach in such cases to get the needed help of a guardian or guardian ad litem for a client or to get medical and other records.
The cooperative method is a good approach when your client would like to engage collaboratively with his or her ex-partner, but is not sure that they can settle without court help, or if they do not want to seek a new attorney due to their attorney’s special expertise.
The cooperative method works well for those who can negotiate in the same room together, but may need court assistance, including discovery, if the process breaks down. I like to think that most family law attorneys use a cooperative approach even in the traditional cases, by exchanging discovery without the need for a formal request and working toward settlement in all cases.
Mediation should be considered regardless of the approach. It can be the first choice, and often is best for unrepresented parties who wish to resolve their matter in an efficient manner. However, in cases – whether traditional, collaborative or cooperative – where the parties have negotiated, but are not able to close the gaps, a neutral mediator can be invaluable in helping each side to see the weaknesses of his or her position or approach and why it might be best to avoid the risk of a trial or leaving the collaborative process.
Factoring in Trust
Perhaps the most important factor in choosing a methodology for a family law matter involves the client’s level of trust of his or her partner. By definition, trust is diminished, or they would not be involved in a family law case (except maybe paternity cases.)
So, the question becomes whether the parties can still work together sufficiently to use a collaborative or cooperative approach or engage in mediation. If they cannot, or if there are factors such as domestic violence, AODA, mental health or other difficulties, they may need to select the traditional approach.
This article was originally published on the State Bar of Wisconsin’s Family Law Section Blog. Visit the State Bar sections or the Family Law Section web pages to learn more about the benefits of section membership.