- Divorce Models
- July 24, 2007
- Law Firm: Boardman Law Firm LLP - Madison Office
Usually considered favorably by the parties, their attorneys and the court, mediation will work well when parties are behaving more rationally than irrationally and are willing to fairly compromise. Mediation will not work well in settings of power imbalances or when one spouse is not ready to reach decisions or let go of the marriage.
“‘Mediation’ means a dispute resolution process in which a neutral 3rd person, who has no power to impose a decision if all of the parties do not agree to settle the case, helps the parties reach an agreement by focusing on the key issues in a case, exchanging information between the parties and exploring options for settlement.” Sec. 802.12(1)(e), Wis. Stats.
Mediation is a cooperative and voluntary process, and either of the parties or the mediator can terminate the process at any time.
Reasons to Mediate
Usually, a cost-benefit analysis leads to a decision to proceed with mediation. The only real downside is the transaction costs for participating in the mediation (e.g., preparation of mediation statement; participation at mediation). Compared with the cost of a one- or two-day trial, the cost to participate in mediation is far less.
As lawyers, we have a duty to our clients and society to provide cost-effective service, and participating in mediation may sometimes be the best way to provide such cost-effective service. (Sec. 802.12, Wis. Stats. Annotated, Judicial Council Note-1993). Our lawyers have extensive experience in participating in mediation with their clients and in acting as mediators on behalf of others to help settle family law disputes.
Mediation can and should be empowering to the participants because they are the decision-makers (not the judge, although the judge must ultimately approve any settlement that you do reach) and can determine the course of resolution.
Mediation provides more potential for creative solutions. Participants can potentially reach solutions that cannot be imposed by the court, e.g., setting your own terms for non-modifiable support; creating a provision for college support; settling upon a fair payment schedule for the pay-out of property division.
More likely to be followed than an imposed decision from court.
Mediation can foster a cooperative relationship between spouses, which is particularly helpful when the parties have minor children. The likelihood of litigation after the case is initially resolved, on matters such as modifying the judgment or enforcing the judgment, is substantially reduced.
More uniquely suited to individuals than court order.
Parties can tailor their agreements to their personal needs. Court orders tend to be more generic and may not take into consideration certain personal considerations unique to an individual’s case.
Quicker than litigation.
Mediation can generally result in resolution of disputes more quickly than litigation.
Voluntary – A settlement cannot be forced.
Although the court has the authority to order parties in civil litigation to attempt mediation or other settlement processes to resolve a case, it does not have the authority to require a resolution. Gray v. Eggert, 2001 WI App 246, 248 Wis. 2d 99, 106-07, 635 N.W.2d 667: “Moreover, while the mediation process will often depend on the parties’ good faith and open-minded flexibility, it does not require any party to abandon a legal position or settle a case.” Id. The parties themselves must agree to the process, one which is entirely within the parties’ control because it cannot proceed without their consent.
Caveat: Mediation cannot resolve all cases.
Here are some of the examples of types of situations that do not lend themselves well to resolution by mediation:
- Parties not in the same universe
- Unreasonable expectations/expecting miracles
- Unwillingness to compromise
- Overly adversarial attorney
- Withholding information/undervaluing and overvaluing assets
- Rushing the process
- Need for vindication
- Legal principle at stake
- Mental/emotional incapacitation
- Power imbalance/domestic violence
Our family law attorneys are all members of the Collaborative Family Law Council of Wisconsin (see www.collabdivorce.com). We believe in participating in this model for resolving divorce cases if appropriate (keep in mind, however, that it is not always appropriate).
The goal and essence of collaborative law is the shared belief by participants that it is in the best interests of the parties and their families in typical family law matters to commit themselves to avoiding litigation. The parties adopt a conflict resolution process which does not rely on a court-imposed resolution. The process relies on an atmosphere of honesty, cooperation, integrity, and professionalism. The goal is to minimize the negative economic, social and emotional consequences of protracted litigation to the participants and their families.
- Each party is represented by separate counsel.
- The parties and attorneys sign a binding participation agreement providing that the attorneys are retained solely to facilitate a reasonable, efficient settlement of all issues.
- The agreement commits the participants to good-faith negotiations, without the threat of or resort to litigation during the pendency of the collaborative process.
- The parties agree to voluntary and full disclosure of all information.
- If a client terminates the process and initiates litigation, both attorneys are disqualified.
- If the process terminates and litigation ensues, the collaborative agreement may give the court jurisdiction to make awards of attorneys’ fees and costs against any party who has misused the collaborative process for delay, deception or other bad-faith purposes.
Reasons to Sign on to the Collaborative Process
The same rationale describing the benefits of mediation (described above) applies equally in the Collaborative Law model. With respect to cost, although the cost may still be significant—because of the need to meet fairly regularly with the attorneys, problem-solve, and draft documents—the anecdotal evidence to date suggests that the cost for clients in Collaborative Law is much lower than for those who must litigate.
The Collaborative process is more empowering for clients than litigation, where the decision about issues affecting their children’s future, and their own financial future, is made by someone else. Clients are the clear decision-makers and determine the course of resolution and agreement, with guidance from their attorneys.
The Collaborative process lends itself well to the use of creativity and flexibility, and is much more likely to be adhered to than a decision imposed by the court.
Resolving cases with Collaborative Law participation is generally “quicker” than the traditional approach, because the parties regularly meet and problem-solve, and cooperate in getting the necessary paperwork done in a timely fashion.
Caveat: Collaborative Law Is Not Always Appropriate.
Collaboration depends on good faith participation. If participants are not planning to act in good faith, collaborative law is not the way to go. If there are suspicions of intentions to delay, or to be dishonest, or to commit fraud, collaborative law is definitely not the way to go.
If there is a strong reluctance to fully sharing all relevant information, especially financial information about the parties’ assets, collaborative law is not the way to go.
If one or both participants have a mental illness or history of mental illness, collaborative law is not the way to go.
If one or both participants have difficulty being in the same room together, collaborative law is not the way to go.
If there is a history of physical, verbal, or emotional abuse, collaborative law is not the way to go.
Finally, the costs can be higher than anticipated if Collaborative Law fails—in that event, the client will need to retain another attorney and start the divorce process all over again.
When mediation or collaboration will not work or is simply not appropriate, litigation is the only choice left. If that is the situation, we will diligently and thoroughly prepare cases for depositions, hearings and trials, and advocate our clients’ cases as trial lawyers. Our lawyers have years of trial experience in family law cases.
When we consult with our clients, we discuss at length the advantages and disadvantages of the traditional model (litigation), mediation, and collaboration, and strategize to reach the best decisions according to the unique circumstances of each particular matter. We provide our clients with other legal information, as well as resource information, relating to the special financial and emotional issues that they may be facing at the time. We work with our clients to ensure that they make informed decisions about their children’s future and their own financial future, and resolve matters as smoothly and efficiently as possible.