By Stanton M. Cole, Special to JTNews
When a marriage is in the process of disintegration, causing stress and strife as between spouses and their children, very often the first resort of one or both of the spouses is to seek counseling as a way to reconcile their differences. When counseling does not resolve the issues between the parties, or counseling does not take place because of resistance by one of the spouses, and one or both of the parties feel the need to move on with their lives, the next resort is to initiate a dissolution of the marriage with self-help or the guidance of an attorney.
Since time immemorial, couples have used various methods to break the bonds of marriage and provide a framework for the parties and their children to move on with their lives. In today’s world this is accomplished by going through a rather complicated court procedure.
Alternative Dispute Resolution is a concept used to describe the various approaches to finalizing the dissolution of marriage — otherwise known as “divorce” — short of litigation. Traditionally, if the parties could not agree on all issues of dispute, the parties would need to have the issues submitted to a trial proceeding for resolution. Prior to 1970, spousesoften informally submitted their issues to a judge acting as a “settlement judge” to avoid trial. The settlement judge would essentially tell the parties what they would expect if they went to trial, so they had better settle to avoid the cost and trauma associated with a trial. Most of these cases settled, but generally the parties were not happy with the result as having been “forced” upon them by the settlement judge.
Mediation became popular in the 1970s, and many attorneys and retired judges would offer their services as mediators, working with both parties and their attorneys to encourage each side to reach a settlement. Attendance at mediation was voluntary by the parties, usually at the insistence of their attorneys who would convince their respective clients to mediate their issues because:
1. Mediation was more than 90 percent successful in resolving disputes,
2. The final settlement would be much more tailored to the needs of the parties, and
3. This process would avoid the cost and trauma of trial.
In most cases, mediation successfully caused the parties to settle their differences in a far more satisfactory way than having a judge rule at a trial, but far too often the parties were not fully satisfied with the results because it was perceived it was the mediator forcing the settlement to resolve the parties’ differences rather than an agreement based upon each party’s respective interests.
In 1989 a new approach to ADR was created, commonly known as collaborative law. It is not a different type of law, but a different approach to family law designed to remove the stress in marital breakups, avoid litigation in the divorce process, enable both parties to have their basic interests met in the final settlement, and conduct the proceedings with respect and dignity between both parties and their attorneys.
In the collaborative process, both spouses traditionally engage attorneys trained in the process who represent their respective client, but who focus on a just result for both parties, not only for their own client. The parties and their attorneys will typically meet in a series of meetings, often attended by other professionals who contribute their expertise toward reaching a conclusion that satisfies the interests of both parties, such as family counselors and financial experts. Rather than each spouse establishing what he or she demands as a condition of a final settlement, both parties relate to each other their underlying interests — such as financial security and a good relationship with their children — and when those underlying interests are identified, the parties then seek solutions that will satisfy those interests.
Spouses who engage in the collaborative process are generally satisfied with the outcome for a variety of reasons, including:
1. The final outcome is based on the respective interests of both parties rather than what one party wants or insists upon to avoid trial
2. The process results in a less confrontational/adversarial process, resulting in less stress
3. There is more respect between parties and other members of the team
4. The parties exert more control over the outcome (rather than by the attorneys, mediator or judge)
5. Professionals work with both parties to solve problems, not take sides that results in a “battle of expert witnesses”
6. More time may be devoted to the parties to resolve disputes (whereas in mediation or trial, time is usually limited, resulting in hasty and often ill-designed resolutions)
7. The process results in a better outcome for both parties
8. The process avoids the alienation of children toward one or both parents and preserves the integrity of the family with their children (possibly the most beneficial effect of this process)
Rabbi James Mirel states that the collaborative law process is supported by long-standing Jewish tradition. He refers to a passage from the Talmud in our daily morning prayers reflecting that one of the highest values in Judaism is “hava-at shalom bein adam lakhavero” — “establishing peace between two parties,” and interpreted in the Sephardic tradition as “establishing peace between a man and his wife.”
Rabbi Mirel confirms that collaborative law represents the process by which peace can be established even in the face of a broken relationship. Nothing, he says, could be more authentically Jewish.
If a party wishes to interview a collaborative law attorney to determine if this approach is best suited to his or her needs, a good starting point would be to review the attorneys who are members of King County Collaborative Law at www.kingcountycollab.org/find-a-professional/mediators/family-law-attorneys.
Stanton M. Cole is an attorney and a member of King County Collaborative Law.