Advising Clients About Settlement Process Options

People initiating a divorce or legal separation come to divorce attorneys with questions; paramount among these is “How do we get started.” This usually means something along the lines of how do we reach a final settlement or how do we go about the divorce process. The attorney can provide a valuable service by refraining from a launch into what the client “can get” or what the client should “go after.” Many attorneys are prone to take this kind of aggressive approach both at the expense of providing complete  information to the client and at the further expense of making the “opposing” spouse the adversary.  This is not only a disservice to all involved, it is also not even the first issue that needs to be addressed.

How people go through a Tucson divorce or legal separation can significantly impact their well being for some time to come even after the actual divorce is finished. Often the settlement process is at least as important as the final outcome. The identical outcome can leave either a lasting bad taste or provide a peaceful transition from the marriage. Whether it is one or the other often depends on the approach used in reaching the final outcome..

There are essentially three different settlement approaches to a legal divorce or legal separation. The first is the traditional adversary approach, wherein each party retains their own litigation attorneys and the customary approach of filing a plethora of discovery documents to obtain information from the other side ensues. The contest can escalate from there. This is not only a cumbersome approach it is time consuming and costly. Additionally, the attorneys often work at arm’s length from each other rather than cooperatively trying to reach resolution of their clients’ divorce related issues. And, the prospect of court litigation always looms. To be sure, there may be some cases and clients that warrant this approach, and for those clients it is valuable and worthwhile, however costly and difficult.

Most clients, however, would benefit from one of two more cooperative approaches to resolving legal divorce issues, especially when there is to be an on-going relationship because of mutual children or for other reasons. These two cooperative approaches are not often explained to clients by their attorneys, especially if the attorney’s law practice does not utilize them (who wants to give away business).

Mediation is the first cooperative approach. Here, the parties meet with a neutral mediator/attorney who represents neither party but whose allegiance is to a fair and balance settlement. Fair and balanced here is in the eyes of the parties and the mediator. This approach, which uses only one professional, is the most straightforward and least costly, since the parties are working directly with each other. Using the services of an experienced mediator can be ideal for many parties.

For clients who want to use a cooperative approach to settlement but are reluctant to engage in the settlement process without their own attorney, a Collaborative Law approach is best suited. In the Collaborative Law approach each party is represented by their own attorney, however, the parties and their attorneys commit in writing at the outset of the case to refrain from court intervention. “I’ll see you in court” is not a possibility in Collaborative Law because everyone has agreed there will be an out of court settlement.  Collaborative Law uses many mediation-like strategies for cooperative engagement, and discussions and decisions are made in meetings with the parties and their attorneys.

It behooves the client new to the legal divorce process to ask their attorney to explain all the approaches to resolving their divorce related issues so they might more intelligently know which is the right one for them.


© Copyright - Peter D Axelrod