Clients often raise three major complaints about the divorce process: 1) how long it takes; 2) how much it costs; and 3) the complete lack of control they feel over their lives while the process plays out. Most clients fail to appreciate that all three of these issues are directly related to a desire (or need) to litigate disputed issues in the case. How long it takes to complete the divorce process and how much it is going to cost is largely driven by the number and complexity of the disputed issues in play (although other factors such as anger-driven litigation, games-playing, or even the simple need to give the other party a chance to emotionally “catch-up” to the reality of the divorce often play a critical role). The disconcerting lack of control that clients often experience during divorce is also directly linked to disputes in the divorce case. As I often warn clients, to the extent that there is no agreement on a particular issue in their case and it remains actively disputed – whether that issue is who gets to stay in the family home or how much each parent is going to see the kids – then the parties are ceding control over that issue to their attorneys or, ultimately, to the Court. Either way, some stranger with no familiarity with them or their lives – and very little time to learn anything about either – is going to make important decisions for them and their children that will control their lives for a long time to come. That should be a scary thought.
As should be readily obvious, a primary remedy for avoiding lengthy and costly divorces – and that out-of-control feeling that many divorcing parties experience – is to settle disputed issues as early as possible. While many clients come to me with the idea of immediately going to “mediation” – which is apparently the popular trending idea among people thinking about divorce – settling a divorce case is actually a step-by-step process, mediation only being one of those steps (and by far not the first). I advise clients who are thinking about a divorce or who are at the initial stages of a divorce to use the following step-by-step method for settling their cases as quickly and as cheaply as possible:
1. Step One: The Kitchen Table Conference. Clients simply set a time (when the kids aren’t around) to go through all their assets and debts and discuss how they want to divide them.
They should start with the easiest items first and gradually move to the more difficult items. As agreements are reached on certain assets or debts, they should be written down. The purpose of this exercise is to arrive at agreements on as many items as possible. Arguing over an item is not constructive and should be avoided. If an agreement cannot be readily reached on a particular item, put it aside and move onto the next item. At the end of the day, there should be two lists of items: those on which agreements have been made and those that remain unresolved. [Note that this approach only works if the parties can talk constructively. If that is not possible – or there is a history of violence – then this approach should not be used.]
2. Step Two: Attorney Consultation. Once the parties have reached agreements on certain items, they should confer with their attorneys and have their agreements properly memorialized. The attorneys can also, with their clients’ blessings, attempt to resolve some of the remaining disputes through attorney to attorney negotiation. If the kitchen table conference is not plausible, then this is often the first step to resolving issues.
3. Step Three: The Four-way Informal Settlement Conference. The parties and their attorneys meet in an attempt to negotiate a resolution to the remaining issues in their case. This sometimes occurs in a face-to-face meeting. However, more often than not, the parties are kept in separate conference rooms and the attorneys go back and forth relaying offers and counter offers.
4. Step Four: Mediation. This process is a lot like the four-way settlement conference described above – except that there is an independent mediator who will generally shuttle back and forth between the two parties and their counsel and attempt to negotiate a settlement on all issues. If agreements are reached, they are written down or recorded. At least in Arizona, where I practice, there are two types of mediation: court-sponsored and private. Court-sponsored mediation is free – but is usually scheduled for a limited period of time (2 to 2½ hours) and the parties do not get to pick the mediator or the date. Private mediation is more expensive, because parties have to pay the mediator, but it is usually more effective as the parties can select the mediator, the amount of time for the mediation, and the date.
5. Step Five: Arbitration. Mediation and arbitration are two very different things. Mediation is a settlement conference where neither party is obligated to settle. Arbitration is a private trial before a mutually selected “private judge” who will hear the evidence and render a binding decision. Arbitration is often a viable alternative to a regular court trial to resolve issues.
6. Collaborative Divorce. This is a recent concept where each party is represented by a “team” of professionals, including an attorney, who will work together to resolve the case without litigation. The parties contractually pledge not to litigate their case and must find a new attorney if they choose to litigate. I personally think this is an unnecessarily expensive and cumbersome process that is no more effective at resolving issues than the procedure outlined above.