Consensual Dispute Resolution refers to voluntary settlement processes, by which parties seek to resolve their differences through negotiation, avoiding the need to go to court and have a judicial officer make decisions for them. The two most common modes of consensual dispute resolution are the Collaborative process and the Mediation process. We encourage clients to explore these alternatives to the litigation process. We have found that parties often are better able to maintain control over their own lives and over their relationship with their children, by avoiding, to the extent possible, the potentially negative, corrosive byproducts of a contested, adversarial court proceeding.
In more cases than might be suspected, cooperation and collaboration to reach a reasonable and mutual agreement is not merely desirable, but quite achievable. Through the Collaborative Process or through Mediation, husbands and wives are able to obtain professional assistance and support in negotiating sensible, workable, creative solutions to the many issues that arise in the context of a divorce, such as property division, support issues, co-parenting plans, etc.
Consensual dispute resolution not only allows clients to achieve a good and acceptable result for themselves and their children, but it tends to be a less expensive process and, for many, a more satisfying process than contested litigation proceedings. By avoiding court proceedings, parties avoid having to pay their lawyers to sit around the courthouse waiting for their case to be called, to prepare on multiple occasions for endless hearings, for the preparation of lengthy declarations and legal briefs and/or of expensive formal “discovery” documents.
By opting out of the competitive, adversarial process, parties and their counsel also avoid the temptation to attack one another in declarations and court hearings in an effort to “win” the approval of a judge. Instead, the attorneys’ focus is on preparing themselves and their clients for good faith, forthright negotiations. Information is gathered by the parties cooperatively and informally, so that each will provide and receive full disclosure. Meetings are planned for, start on time, and run on an agreed agenda. Care is taken by the professionals, as well as by the party participants, to act and speak respectfully, yet directly, and to focus on problem-solving and solutions, rather than on character assassination or recrimination.
In Mediation and in Collaborative cases, the parties participate directly in the decision-making process, rather than having attorneys tell them what they must do, and rather than submitting the decisions about their children and their lives to a third-party decision-maker (i.e. the judge). Clients are treated as rational, capable adults who should and do make their own decisions. Although making one’s own decisions and participating in discussions and negotiations with your spouse or ex-spouse is not easy (and can be very difficult), it is also empowering.
Research shows that parties who participate in and voluntarily approve their divorce settlement agreements are far more likely to abide by those agreements, and far more likely to move forward with their post-divorce lives in a positive way, compared to those individuals whose divorce judgment is imposed on them by a judge’s decision, or who feel that their attorney forced them to accept a settlement “agreement.”