Another process, which I don’t think is quite as well known at this point as mediation, is Collaborative Family Law. It’s basically a process where both sides and their attorneys agree and commit to resolving the case outside of court. Everyone signs an agreement that if the case ends up contested in court, neither of the attorneys who participated in the collaborative family process is permitted to represent a party in court.https://www.youtube.com/watch?v=6_1qOpk2GRACollaborative Family Law is usually thought of as a approach where everyone tries to get along, and usually happens as a series of meeting with all the parties, attorneys and any experts present, where the parties “collaborate” and try to resolve the case.
I believe it’s possible for it to work also in situations where there is high conflict, it the parties make some basic commitments, at least in their own minds. Even if the parties hate each other, and have no interest in sitting in the same room, it’s still possible for everyone to commit to resolving the case outside of court – i.e. deciding we’re not going to file a court case, we’re not going to go through all the court processes, hearings, “discovery” etc. and one way or another, we are going to resolve the case. In addition, instead of handling the collaborative family law case through meetings with everyone present, the case can proceed to resolution through more informal negotiation, e.g. between the attorneys. You’ll find that attorneys in a collaborative family law case often have a different approach or orientation, than even the same attorneys do when handling a litigated, adversarial case. In a litigated case, attorneys can be cordial, even friendly and get along, but the litigation process involves a potential eventual trial, and the case has to be prepared with that in mind – i.e. an adversary process, versus the approach or orientation in a collaborative family law case where the idea is to work together.
For these alternative dispute resolution approaches to work, either mediation or collaborative family law, both sides need to be reasonable – at least in terms of not relentlessly, without end, seeking a settlement that is simply not reasonable. Sometimes seeking an “unreasonable” settlement will work for you – e.g. try to go to mediation to get a settlement that there is no way you could get in court, but if the other party is represented by a competent attorney or is aware of what Florida law provides, it’s likely to result in no settlement. Although some mediators may not want to acknowledge this, there are almost certainly cases where one spouse or the other wants to get the case into “pro se” mediation, with the primary goal of getting a settlement that isn’t “fair” and won’t fly if their spouse gets legal counsel. Similarly, there are probably cases where one spouse or the other is interested in collaborative family law because they seek to drag out the process or get a resolution they couldn’t get in court. On the flip side, there are probably more cases where the parties could settle through mediation or collaborative family law, without the fight and with less expense than they get if they file suit and contest the case in court.
This has been a bit of a round about discussion in the two parts of this post, but the point I’m trying to make is that you both don’t have to be willing to sit down and hold hands to be able to take advantage of “alternative dispute resolution”. It takes more I believe a commitment to resolve the case outside of court, with the help of a professional or professionals, who can perhaps help to lead you to a settlement. I’ve written some here about the differences between the different approaches to handling a family law case — mediation, collaborative family law, and traditional divorce litigation, and you can look here (mediation) and here (collaborative family law) for more information about that, as well as the drawbacks or potential disadvantages of the different approaches.