07/07/98

Secrets of a Healthy Divorce......

Dear Beth,

Several weeks ago I read your column about secrets of a healthy marriage (3/27/98). How about the secrets of a healthy divorce? I am a lawyer and recently published the Friendly Divorce Guidebook for Connecticut. We all hope our marriages will make it, but when they don't, we owe ourselves and our children a decent divorce that minimizes the damage to all concerned.

Families faced with this traumatic event in their lives turn to the legal system to resolve their problems and redirect their lives. But involvement with the legal system seems inevitably to lead to escalation of emotions and fears to the point of war between the spouses, a war which leaves the couples' sense of self-worth, their financial stability and their children among the victims of the conflict.

It doesn't have to be this way. There are other options for couples who want to end their marriage in a constructive way in order to minimize hostility and damage to all family members. There are three paths to divorce: the conventional adversarial process, a mediated settlement and a collaborative approach. The conventional route is the one currently used by most couples. Divorce is perceived as a fight that emphasizes competition, winners and losers, and suppression of cooperative impulses. Lawyers are seen as "jousting gladiators" rather than as participants seeking a solution to the family's problems.

Mediation offers an alternative route to a divorce. In mediation, a neutral party meets with the couple in a confidential setting. Mediation provides an environment where the spouses can discuss the issues that need to be resolved in order to begin their new lives as single people and co-parents. The mediator gives no legal advice, but is instrumental in sharing parenting and financial information to help the couple explore settlement options and reach agreement for themselves and their children.

Divorce mediation offers many advantages over the adversarial process including: maintenance of control over the process, cost savings, privacy and a base for client-generated solutions, future communications and parenting. Mediation does not exclude legal advice, although lawyers are generally not present in the sessions. In fact, each spouse in the mediation process should consider obtaining the advice of an attorney before and during mediation sessions and before signing the final settlement agreement.

A third alternative is available for divorcing couples who want to settle their cases cooperatively, but would prefer to have attorneys present while they meet to explore their options. "Collaborative law" is new to Connecticut, but it has grown in popularity in California and is now in high demand. Collaborative law establishes a negotiation process whereby each party is represented by an attorney at a series of 4-way meetings to discuss the issues in the case and identify and agree on solutions. What makes this process different from settlement negotiations in conventional cases is that all four parties formally agree not to go to court or to threaten litigation in the process. They jointly retain any experts needed, such as psychologists or accountants. The parties share a commitment to the family and to honest, respectful and productive problem solving. The lawyers share the goal of settling the case out of court and pledge to withdraw representation from their clients in the event that either party resorts to litigation and the conventional divorce process.

Mediation and collaboration, while not viable alternatives for every couple, offer the promise of ending the adversarial nature of divorce for most Connecticut families. No matter the road taken, people do have a choice about how to reduce hostility, increase control and eliminate the public expression of shame and blame that comes with a courtroom battle.
Barbara Kahn Stark, Esq.

Please send questions or comments to bbruno@snet.net.