More and more clients and divorce attorneys in Broward, Dade and other parts of Florida are moving towards trying to resolve family law cases outside of court. It's always been the case that most divorces and other family law cases are settled outside of court, before trial, but something that is become more popular these days, as people look for less adversarial and less expense ways to handle divorces, is something often referred to as "alternative dispute resolution", including Mediation and Collaborative Family Law. Many people are pretty familiar with mediation, and there is an earlier post on the blog discussing mediation. You can find more information here about Collaborative Family Law.
The issue I wanted to address in this post is can these alternative, or potentially more friendly approaches work where the parties don't like each other, or where there are still extremely strong feelings of anger or resentment? You don't necessarily quickly get over being seriously wronged by another person - especially a spouse or other person who was close to you. So the question is, while mediation or a collaborative process can work when people basically get along and agree about how they want to settle things, can it work when that is not the case at all? I believe the answer to that question - for a few reasons, is yes.
First, you can hate someone - be incredibly angry at them, but still want to get your divorce or other case resolved, done, so you don't have to live with it for a year or more, and spend large amounts of money on attorneys. There are cases of course, where one side or the other wants to litigate and make the other side suffer. Perhaps that is an appropriate course of action sometimes - I think that's more a decision each person has to make for themselves or with a counselor they're working with, etc. There are limits to what's permitted in the legal system, however - parties aren't permitted to take positions that are without any support, conflict between parents can have a negative effect on children, and there is the question of how much satisfaction a person can really get from fighting through the court system, or if that is a "curative" process.
Second, it is sometimes possible for you to hate each other, be incredibly angry, and still get through a mediation, for example, and come to an agreement. Sometimes it will involve one or both parties being willing to stomach being in the same building as the other party, or one or both parties, as applicable, making a decision to manage their own behavior, at least enough that a mediation can be accomplished. One good thing is that you can mediate a case, and never or almost never see each other. The mediation can be accomplished entirely through separate meetings between each party and the mediator, called "caucuses". One thing that has to be screened for is safety and domestic violence, and mediation isn't possible or appropriate in all cases. Although Collaborative Family Law cases usually involve a series of meetings among the parties, attorneys and any experts involved, it could be done through more informal negotiation through the attorneys.
For mediating a case, one thing I believe helps is for both sides either to be sufficiently informed about Florida law, at least enough to know what they want to settle for - e.g. how much they want for alimony, not be concerned with what their rights are, or be comfortable making a decision based on the general information a mediator can give them. A mediator can only go so far in giving the parties general information about Florida law. Using alimony again as an example, a mediator could tell you that alimony is based on need, ability to pay and the other factors listed in Florida's alimony statute, including the marital standard of living, but most likely will not tell you what's a reasonable or likely amount or range for alimony in your particular case. Each party can hire an attorney and go to the mediation with their own attorney, or go to the mediation themselves, but consult with an attorney before going, and after the mediation also before signing an agreement. Sometimes spouses will want to keep attorneys entirely out of the mix.
(Continued in Part II)