I may not be the answer

Judge Lynn Toler, a graduate of Harvard and The University of Pennsylvania Law School, served as a municipal court judge for eight years. She presides over the courtroom on the nationally syndicated television show Divorce Court and is the author of the book My Mother's Rules, a guide to greater emotional control.

By Judge Lynn Toler
Updated: August 29, 2014
Advice from Judges

I suppose it's an occupational hazard. It happens regularly. First, there's a moment of awkwardness. They recognize me but don't know why. Then it hits them: I am the judge on Divorce Court, and that's when it begins.

Those who have had an unpleasant experience tell me about their divorce. They want to inform me not of personal wrongs but of their sense of lack of control, a story inevitably starring the same trinity of evil: their jerk ex, his or her vulture attorney, and that idiot judge.

Yes, divorce is a legal proceeding granted by a court. But adversarial maneuvering is not the only way to reach that legal end. Divorcing couples should consider all of their options, including Alternative Dispute Resolution (ADR). ADR can help you walk away with not only a mutually tolerable result, but a greater sense of control.

ADR is not new, nor is it always the answer. But you should consider it, since it's increasingly available and expanding in scope. ADR is not, as many believe, only effective when a divorce is friendly. Of course, if the War of the Roses has already begun, it won't help, but some animosity is anticipated and can be effectively dealt with by a trained mediator.

The advantages are many. ADR can speed up the divorce process, help avoid excessive attorney's fees, and since the proceedings are privileged and confidential, it leaves the litigation option intact.

In Divorce Mediation, an impartial third party acts as a facilitator, helping the parties come to an agreement on disputed issues. Mediators set boundaries and employ skills designed to de-escalate emotional situations. Helping the parties build on common ground, they "caucus" with one side if that person is stonewalling, and they can suggest creative solutions to custody, support, and property division issues with the parties' particular wants and needs in mind.

In a Collaborative Divorce, each side is represented by a lawyer specially trained in the collaborative process and divorce issues. Dedicated to a negotiated solution, both collaborative lawyers must withdraw should litigation become necessary. In addition to the benefits of mediation, a Collaborative Divorce can help level the playing field if there is an imbalance of power in the relationship.

As I've said, this is an evolving field. More recently, a hybrid called Collaborative Mediation has emerged, as well as the concept of Cooperative Divorce. The former combines aspects of both mediation and collaboration. The later employs the collaborative method's dedication to negotiation between the parties' attorneys, but without the requirement of withdrawal should litigation become necessary.

Of course, this is just an overview of what's available. You will need to investigate the options where you live. Some courts have their own mediation services. Many independent ADR services exist, but you should make sure they specialize in divorce and possess any required certifications. They should adhere to any standards of practice for divorce mediation adopted by your state or province or, if none, those developed by a reputable source such as a local Bar Association.

There are, however, situations in which ADR is inappropriate: where there is a gross disparity in power between the parties; or where child or sexual abuse, financial misconduct, serious mental illness, or substance abuse exists. Sometimes you need what only the judicial system can offer. We have coercive and protective methods at our disposal that some situations require. But we are, increasingly, not the only game in town. Nor should we be.

Knowledge is power. Be aware of your options. I may not be the answer.

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July 29, 2008
Categories:  Legal Issues

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