Harvard Conflict Resolution Program Agrees

Collaborative Divorce may be Best!

In an article published recently by The Program on Mediation of Harvard Law School's daily blog, researchers studied 369 divorcing couples in Belgium to see what worked best, comparing Litigation and Mediation. The results were measured for success as rated by the couples themselves.

"Participants who engaged in mediation reported that they reached higher quality agreements, as measured by how tailored, fair, comprehensive, and clear the agreement was."

What does this study reveal for divorcing couples in the USA?

 Many couples are unhappy with Litigation because they feel they never get to "tell their side" and the judge just talks to the lawyers and makes decisions without all the facts. Litigation is costly. At the end of the day, time is required and more time is always needed to show just one more piece of evidence.

In Mediation, many times couples feel pressured to finish everything at the end of a long day, but the results remain largely in the control of the parties. 

"Overall, the results suggest that couples would be wise to be aided by professionals who believe that reducing conflict and encouraging an open dialogue are more likely to promote a satisfactory divorce than a straightforward competitive approach would. Indeed, perhaps seeking the best of both worlds, some divorcing couples are turning to a process known as collaborative law, which combines a lawyer’s advocacy and legal know-how with the problem-solving orientation of mediation."

I like collaborative law for all the benefits of Mediation, along with the added benefit of time and consideration. People need time to review impacts of decisions and must be advised as to alternative courses available.

You can link to the article below. You can also call me, 407-645-3297.

"https://www.pon.harvard.edu/daily/mediation/mediation-negotiating-a-more-satisfactory-divorce/?utm_source=WhatCountsEmail&utm_medium=daily&utm_date=2019-10-21-13-30-00&mqsc=E4095613

Collaborative Divorce - a Comment

The collaborative process seeks to insulate and limit the role of the collaborative lawyers and retained experts in order to ensure that a party cannot attempt to use the collaborative process to gain tactical advantage. 

Collaborative lawyers and experts in a collaborative process necessarily learn a great deal about the parties and their goals and interests, as is intended to facilitate an agreed upon resolution of the dispute which is beneficial to all parties. It is because of this unusual access that separately and jointly retained experts have to the parties and to all information, that retained experts are precluded from testifying as fact or expert witnesses in any adversarial proceeding among any of the parties to the dispute. Likewise, retained experts work product and opinions are not discoverable in an adversarial proceeding. 

Consequently, a party should not engage any person as a retained expert that the party might wish to use as a testifying expert in an adversarial proceeding among the parties. If the parties want to introduce the findings of a retained expert in an adversarial proceeding, they may do so by stipulation. 

Why is a Collaborative Process Best for High Asset Divorces? Because the process itself promotes resolution rather than adversarial argument. Once the parties have ALL the Information, they are free to choose a resolution they desire, rather than being forced to fight every minor battle for some perceived advantage only to be encouraged to fight more for more advantage so they can fight for more.