Mediation Article

Written by: Mark H. Henderson

It is well established that many marriages end in divorce. How one goes about obtaining the divorce has changed in many states. Essentially, in order to accommodate the volume of people who are representing themselves or have limited funds and ability to educate themselves on the process, courts are devising new ways to facilitate the process. One way that the Superior Court in Stamford, Ct. addresses this issue is by having attorneys volunteer their time in order to meet with people with family law issues. They listen to the issues, get background information and then explain the proper procedure to follow in order to successfully navigate their case through the judicial system.

The legislature has devised new procedures which are intended to facilitate the process in a more expedited fashion. “In the old days”, one needed to wait at least 90 days before one was eligible to get divorced in Connecticut. Many states have similar “cooling off periods”. The legislature has now offered two new approaches which simplify the process. For those marriages of short duration where there is limited income, no real property and no children, one can get divorced on the same day the request for an expedited divorce is filed. Similarly, a more expedited approach has been established when people have children and real property and therefore are ineligible for the first expedited path. However, as soon as the parties have worked out all of the issues, they can apply to the court to expedite their divorce before the 90 day period has expired. All of those requests are granted as long as the documents are in order.

There has been a trend away from “divorce litigation.” Divorce litigation is a process in which each party hires an attorney and all issues, problems and concerns are typically addressed in court. In light of the volume of such cases pending statewide, those divorces last for a long time and before the cases are ripe for adjudication attorneys are paid by the hour, it is not surprising but that litigated divorces are expensive. These cases often involve complex valuation of assets and often involve more than one expert. An expert is someone who has information for the court which is “beyond the ken” of the average man. Experts are expensive as well, as they charge on a hourly basis and receive retainers just like other professionals. So with battles over the value of assets, the actual magnitude of the family’s debt, knowledge of the existence and value of all assets and understanding the family’s debt structure, the case can protracted and expensive.

There are two (2) somewhat new methods which have gained acceptability and help to lessen the court congestion because disputes are resolved over a bargaining table. They are Mediation and Collaborative divorce. Mediation is a cooperative dispute resolution mechanism where a neutral professional assists families define their issues and work together to reach an accord on those issues. The disputing parties meet with a mediator to guide the communication process and see to it that both parties are heard relative to all issues. Conflicts are resolved issue by issue until all options have been considered and the parties reach agreement on all issues. The mediator then drafts a comprehensive agreement on all issues and then recommends that each of the parties obtain their own individual “review counsel” who make certain that the agreement comports with the parties’ actual agreement. Very often, review counsel will want to clarify an issue or offer alternative phraseology in order to focus on the issue and the process.

“Collaborative divorce” is also known as “non-adversarial divorce”. In this modality, the parties and counsel sign an agreement that neither party will do anything about the divorce in court. They agree to work together and ultimately work through their issues. Only once an agreement is completed and fully agreed to by both parties may the attorneys bring the process to court for the court to consider the fair and equitable nature of the agreement.

One final point. All of these “cases” involve people who are going through one of the worst times in their lives. Moreover, working out all of the elements of a divorce is not generally a simple proposition. This is the human element of the divorce and it must be a part of this process. Many people believe that the predominant emotion in a divorce is anger. However, the driving force is fear. How can we survive in 2 houses with the same income that barely covered us when we were all together in one house? What if I lose my job?? Mediators and collaborative attorneys recognize the unique configuration of each family and must work hard to create an agreed upon equitable approach into the future.