Rachel L. Virk, Attorney at Law
This article appeared in the Winter 2011 issue of Family Law News, published by the Family Law Section of the Virginia State Bar Association.
Litigation is an old-fashioned way to resolve disputes. Nowhere is this more evident than in the family law arena. Attorneys are increasingly developing and turning to non-litigated forms of dispute resolution.
It is my hope that non-litigated dispute resolution will become more the norm, especially in the family law arena, and that litigation will eventually be viewed as the “alternative” form of dispute resolution. Accordingly, collaborative and mediated resolutions will be referred to herein as methods of non-litigated dispute resolution, and not as methods of “alternative” dispute resolution.
In considering collaborative divorce, the fundamental question is “When is collaboration appropriate?” This question will be answered from the perspective of a divorce attorney faced with determining the most appropriate way to proceed. To answer the question from the perspective of the client faced with trying to determine the best way to proceed, see Rachel L. Virk, The Four Ways of Divorce: A Concise Guide to What You Need to Know About Divorce Using Litigation, Negotiation, Collaboration, and Mediation, So You Don’t Pay More Than You Should (Vanguard Books LLC, 2009).
How Does Collaboration Compare to Litigation?
If a party insists upon taking his or her spouse to court, or if a party insists upon being taken to court by his or her spouse, or if a party has no choice but to stand up and fight, the battles will be won or lost with the weapons of motions, hearings, and evidence. To a party who wants to fight, or who will not make reasonable offers of settlement, or who is not being offered a reasonable settlement, collaboration is simply not an option. Someone will probably have to be ordered to do something by a higher authority in a black robe.
How Does Collaboration Compare to Adversarial Negotiation?
Closely related to the litigation dynamic is that of adversarial negotiation. If it is important for a party to threaten to take his or her spouse to court, or if it is important for a party to threaten that his or her spouse will have to litigate, or if a party has to show that he or she is serious about fighting it out in court, an aggressive or assertive stance may be necessary. Once initiated, that momentum will probably have to be carried forward to reach a final resolution. To convert the case to a collaborative case would destroy the message that had to be imparted.
How Does Collaboration Compare to Non-Adversarial Negotiation?
Many attorneys are unwilling to advise a client to sign on to the collaborative process, because that process requires the disqualification of that attorney if the collaboration fails. These attorneys are of the firm view that if negotiations are not completely successful, parties are financially and strategically disadvantaged by having to start over with new attorneys. This is probably the single greatest reason why collaboration has not become more widespread.
How Does Collaboration Compare to Mediation with One Neutral?
Not everyone hates each other just because they are getting a divorce. There exists a set of divorcing individuals who are rational, intelligent, and mature, who simply want to sit down and work it all out. These individuals will research their options, and will often be drawn to and seek out non-litigated dispute resolution processes such as mediation.
If the parties participate in informative mediation (as described in Rachel L. Virk, Informative Mediation: A New Model for Tough Economic Times,Virginia State Bar Association Family Law News, fall 2008), they may not even feel the need to obtain independent legal information. Or the parties may each obtain an initial consultation and advice at the beginning of the process with independent counsel, and a document review toward the end.
In advising clients at the outset as to the best form of dispute resolution, when is collaboration preferable to mediation? Whenever either party feels the need to have an advocate. If a party cannot speak up for himself or herself, or does not understand the issues well enough to participate appropriately in mediation, collaboration is the next best option. It is this small subset of individuals for whom the collaborative process largely exists - those rational, intelligent people who are committed to amicably resolving their case, but who need an advocate to help them do it, and to drive the process.
How Does Collaboration Compare to Mediation with Two Attorneys and a Retired Judge?
This form of facilitated negotiation is preferred over collaboration when there is a need for an authority figure to convince a party of the reality of an outcome in an evaluative manner. Even to coerce, when one party’s view of the case is far afield of a likely litigated result. By contrast, in a collaborative case, if a party feels that the sky is green, both attorneys may validate that party’s view of the sky, and will work toward a result that may require the other party to don green shades at times.
How Does Collaboration Compare to Mediation with Two Attorneys and a Neutral Attorney Mediator?
In some jurisdictions this is the preferred method of mediation. These cases could have been collaborated right from the outset. When the commitment is there, there is no reason why two trained collaborative practitioners cannot assist the parties in reaching that settlement without the assistance of a mediator. There is no need to pay for three professionals when the case could be handled by two.
Why is it Beneficial to Collaborate?
Collaboration is not appropriate in all cases. It is sometimes necessary to stand up and fight it out, either in court or outside of court.
The collaborative process is best suited for cases where there is a commitment by the parties at the outset to settle, but one or both of the parties needs to rely upon an advocate. That reliance may be necessary for emotional reasons, or due to an imbalance in negotiating power, or due to an imbalance in understanding the issues, or due to a need for help in understanding the issues. In addition, collaboration is especially well suited for cases where the parties wish to address the emotional issues underlying their divorce.
The benefits of Collaboration are that:
- The collaborative process offers divorcing parties the opportunity to work out the terms of their divorce privately.
- Collaborative divorces are conducted in the spirit of cooperative problem-solving, not as battles to be won or lost.
- Collaboration offers flexibility.
- Through collaboration, parties can address issues that could not be addressed in litigation, and can reach results that would be unlikely to occur through litigation.
- Neutral experts can be utilized in the collaborative process, resulting in cost savings to the parties.
- Collaborative divorce is less costly than litigation.
- Collaborative divorces can produce a more emotionally satisfying resolution.
- The collaborative process is well suited for parties unable to participate meaningfully in mediation or in litigation.
Perhaps as divorce attorneys and the divorcing public come to better understand the various dispute resolution options available, and as attorneys and the public come to better understand the benefits of the collaborative process, collaborative divorce will become more commonplace. The day may even come when non-litigated dispute resolution is the norm, and it is litigation that is the “alternative” form of resolving disputes.
Rachel L. Virk is President of Rachel L. Virk, P.C. She has been in practice since 1990 litigating, negotiating, collaborating, and mediating divorce cases throughout northern Virginia. She is certified as a mediator by the Virginia Supreme Court at the Circuit Court family level, and she is a trained collaborative law practitioner. Ms. Virk is a member of several local, state, national, and international associations addressing divorce dispute resolution. She had offices in Fairfax County, Virginia, for ten years, and in Loudoun County, Virginia, for five years, before opening her own practice in Loudoun County in 2005.