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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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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.

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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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