I believe that the two most critical decisions one makes in proceeding with a separation and divorce are:

  • the process, and
  • the lawyer
The choice of how to proceed with your divorce or separation is going to depend upon the level of support you and your spouse require to negotiate. For some people, a trial may be necessary. Yet our court statistics tell us that only 5-10% of partners who begin a court action actually proceed through to a trial. I believe that the other 90-95% of partners who settle are best served, from the outset, by a settlement process that meets their particular needs. This is why I offer both mediation and collaborative law options for my clients.

There are a number of different ways that you can resolve matters with your spouse. It is important to know what your process choices are before you decide who you will hire. That way, you can choose a lawyer that will give you services in the process that you choose. The process choices are: The Kitchen Table Alternative, Mediation, Collaborative Practice, and the Litigation Model.

The Kitchen Table Alternative
This may be appropriate if the levels of conflict are low, the issues to be resolved are not complex, and both spouses are confident in their ability to negotiate face to face. Once an agreement is reached, it is a good idea to take the contents of the agreement for legal advice, to make sure that all of the outstanding issues have been resolved, and to determine if there is something that needs to be done to formalize the agreement. If formalizing steps need to occur, you and the lawyer can determine what are these are and how will they happen.
This lawyer cannot act for both you and your spouse, (s)he can only act for one of you in drafting the agreement.

If you and your partner need more support in resolving issues, a mediator acts as a neutral third party to facilitate the kitchen table discussion. As a mediator, I am trained in managing power imbalances, and can facilitate in situations where there is some power imbalance. However, if bargaining power is too uneven, you may need the support of an advocate through the course of the mediation. As a mediator, I can give both partners general legal information, but I cannot provide legal advice to either partner. Both people should go to their own lawyers to get independent legal advice. Once an agreement is reached, I will draft the agreement, and you and your partner each go to your respective lawyers for independent advice on the agreement.

Collaborative Practice
In collaborative practice, although the negotiation is still a negotiation between you and your spouse, it is now facilitated by both lawyers. Each lawyer is also there to support their respective clients through the negotiations. Once an agreement is reached, the lawyers will work together to draft it into a legally binding agreement for both spouses to sign. Because both spouses and both lawyers sign an agreement that if the parties go to court, both parties must hire new lawyers, the lawyers are very clear that they have been hired to help resolve matters. The lawyers are committed to respectful negotiations, to full disclosure, and promise not the use threats, of litigation. Other professionals can be brought in to the process, if needed. (Link to "the different professionals)

Litigation Model
In the litigation model, the negotiations happen between the lawyers. Some lawyers involve the clients more intimately in the decision-making by having negotiation meetings or settlement conferences with the clients in the room. The degree of participation that the client has will vary upon the lawyer's practice and the formality or informality of the settlement conference. If the lawyers are unable to resolve matters prior to trial, a judge will make the decisions for the family. Court processes tend to structure the steps as a case goes through in moving to resolution. Even though most cases that are started with litigation end up settling before trial, the court process may dictate the timing, the steps taken in your case, and these processes will influence cost.

In deciding what process is best for you, you will need to decide:

  • What are your goals for your children through the divorce process?
  • The collaborative process offers the support of a child specialist, if you choose, to give the children a voice.
  • How important is it for you to have a harmonious relationship with your spouse into the future?
  • Do you believe it is important for you and your spouse to model respectful behavior for your children?
  • How much conflict currently exists between you and your partner? Can you sit in the same room together? Do you need support to be able to negotiate together? How much support do you need?
  • How important is it for you to have input into the outcome?