A few times a week, I get a call from a potential new client who has heard about mediation or collaborative law but is concerned about whether either would provide enough “protection.” By “protection,” they usually mean making sure they are not going to be taken advantage of because of their impulse to buy peace or custody of the children at the expense of their own financial well-being, or allowed to give away the store because they feel guilty for leaving the marriage and hope to buy forgiveness. Clearly, even though most people have some sense that the traditional divorce process is hard on families, they often mistakenly accept the traditional notion that the adversarial system and the aggressive “tough guys” who practice in it will prevent this from happening and that court (or the threat of it) offers the best or perhaps only safe option for their own situation.
Those of us, however, who, like me, have a long history of working in the traditional system and have either added or switched to consensual dispute resolution (CDR) such as mediation and collaborative practice know otherwise. We know that clients need protection from the grinding legal system itself. Early on in my career, I discovered that this system leads to a host of problems for divorcing families who put their trust in “justice.” I learned that most people never even get to the halls of so-called justice, halls outside courtrooms, which are filled with overworked, understaffed judges with their own biases and 40 cases each morning. And if the clients do get heard, they get short-term solutions to fluid long-term and recurring problems after a debilitating battle that is expensive, invasive, and demeaning. If they settle their cases short of trial (what usually happens), they have wasted enormous time, energy, and money in formal processes, which include preparing for a court hearing that never takes place, and they usually settle for deals that attorneys like to say are fair because nobody likes them. Some justice, some protection! You and your family deserve better.
Is going to court the only way to ensure you’ll get your fair share?
You can be protected by engaging the help of a trained CDR attorney who works in tandem with you – and sometimes mental health professionals and financial experts – to help you move forward with as little damage as possible. CDR professionals have made a complete paradigm shift from the assumptions that guide traditional adversarial attorneys to a new set of values, which stress mutual responsibility and problem-solving above winning, rights, and warfare. They have honed a new set of skills to serve these values and designed new procedures that will really protect the clients and end the cycle of blame, shame, and rage, which is the detritus of the adversarial system and the bane of families going through the transition of separation and divorce.
Instead of providing the momentary satisfaction of engaging in battle, CDR professionals offer structured processes that assist both parties to voice their concerns while protecting them from pressure or attack. They provide an informal way to share information to make sure their decisions are made with full financial disclosure, signed under penalty of perjury, and arrange for expert assistance as necessary, to make sure both parties are on an equal playing field of understanding.
In such a protected environment, mutually acceptable solutions flourish and most CDR cases end with an agreement that is acceptable to both clients and likely to be honored because they have been partners in the decision-making. I prepare and send a written agreement to my clients for their review (with or without counsel) and then send the finished agreement to the Court, where they will enter it as a formal judgment. No one ever has to appear in court. That’s what I call protection.
Paula J. Swensen is a Certified Family Law Specialist at Phillips Whisnant Gazin Gorczyca & Curtin, LLP, a family law firm in Newport Beach, California. View the firm’s Divorce Magazine profile.
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