Opinion

Divorce is costly. The settlement need not be.

Divorce need not entail a fierce battle between partners. A collaborative approach can produce harmonious, creative, and lasting solutions.

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A new wave of legislation aimed at rectifying perceived injustices in divorce cases is rolling into state legislatures. For example, in Massachusetts, a controversial “father’s rights” bill would create a presumption of joint child custody, and proposed changes to alimony statutes would limit the duration of spousal support. All of these proposals will probably face stiff opposition.

Whatever the outcome of these legislative battles, however, three underlying problems will remain – and it is these problems, and not the adjustments that might be needed in alimony or custody statutes, that make divorce a disaster for many families.

Three underlying problems

First, the cost of litigating alimony and child custody issues imposes an unmanageable burden on many couples and their children.

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Second, choosing to litigate these issues means relinquishing control to courts over what we hold most dear – our children and our financial survival.

Third, divorce litigation almost invariably ratchets up antagonisms to a point where children get caught in the crossfire.

Electing to use more effective tools for dispute resolution, such as mediation and the collaborative law process – a decision that any divorcing couple can make – addresses all three of these problems and can lead to better outcomes in both alimony and custody conflicts. Here’s why.

Although proposed custody legislation in Massachusetts and other states levels the playing field for both parents, it does not eliminate the requirement that the court determine a parenting schedule that serves the “best interests of the child.” Joint custody does not inevitably mean equal parenting time. And courtroom battle is a blunt, expensive, and often ineffective instrument for deciding what is in a child’s best interest.

Likewise, while proposed alimony statutes in several states would regulate the duration of alimony, most of them stop short of creating alimony formulas that dictate the amount to be paid.

Instead, courts would be required to make the same highly discretionary determinations that they make now, involving such imprecise factors as a spouse’s employability and the divorcing couple’s standard of living during the marriage.

The impulse to fight

These financial and child-related issues will continue to breed litigation, regardless of legislative reform, unless counsel and clients strenuously resist the impulse to go to war over them.

Unfortunately, the economics of law practice reinforce the impulse to fight. Litigation is more profitable than settlement. In addition, new research in neuroscience – applicable to both counsel and clients – suggests that while we may be hard-wired to enjoy cooperation, “winning” may be even more enjoyable.

To counter those powerful forces, fueled in many instances by the anger that accompanies the dissolution of a marriage, divorcing couples need to make tough choices.

Mediation and collaborative law

Two options available are mediation and collaborative law. In mediation, a neutral third party facilitates the spouses’ negotiation, whereas in collaborative law, the parties hire lawyers for the sole purpose of negotiation and agree to hire new counsel if litigation is needed. Mediation and collaborative law negotiations involve hard work, but high settlement rates in those processes – close to 90 percent – pay off tangibly and intangibly. Yet these tools are still underutilized in divorce cases.

Two years ago I compared the costs of these processes – litigation, mediation, and collaborative law – in divorces in a study published in the University of Missouri-Columbia School of Law’s Journal of Dispute Resolution. The cases involved affluent families with a median net worth of about $2 million.

The disparity in costs was striking.

Dollars and sense

In the mediated divorce cases, the combined cost for both parties for legal fees and mediation fees was $15,671. In the litigated cases, the data showed a median cost for legal fees that was ten times higher – a breathtaking $155,492. The combined cost for both parties in collaborative law cases was $39,445 – approximately 25 percent of the cost of litigation.

In addition to cost savings, mediation and collaborative law processes enable the clients to retain control over the outcome. The hallmark of these processes is that they foster amicable, creative, and lasting solutions.

Most important, in divorces with children still at home, mediation and collaborative law can protect the kids. Research shows that parental conflict is a more robust predictor of bad outcomes for children than divorce. And interviews with adult children of divorce provide anecdotal evidence that kids endure divorce far better when their divorcing parents collaborate.

Of course not every case is suitable for these processes. In high-conflict divorces, and particularly those cases where physical or psychological abuse is present, mediation and collaborative law may be inappropriate and court involvement may be needed.

Even so, courts have recognized that alternative dispute resolution techniques should be considered in virtually every case, and lawyers in many jurisdictions are now required to discuss these techniques with their clients before filing divorce papers. However, such discussions – even when they occur – are often perfunctory.

Law reform may be needed in the areas of alimony and child custody – our divorce laws could no doubt be improved. The biggest improvements, however, will come from the case-by-case choices that individual couples and their lawyers make when they decide whether to fight or collaborate.

David A. Hoffman is a lawyer, mediator, and arbitrator at Boston Law Collaborative, LLC, and he teaches mediation at Harvard Law School.

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