**This blog was originally posted on the State Bar of Wisconsin Family Law Section web page**
Unlike in years past, clients now have many choices for how to handle a family law matter. Should they use the traditional, adversarial method, engage in collaborative or cooperative process or choose mediation to resolve their issues? This article will give a brief overview of the choices and the pros and cons to consider when selecting an approach to resolving family law cases.
Usually, parties will select the type of approach to use to the family case at the beginning. While it is possible to switch during the case from one type to another, it is not possible to change from collaborative to adversarial without changing attorneys. It is also unlikely that once parties have started an adversarial case that they would switch to one of the other approaches.
Most clients are familiar with the adversary approach to resolving divorce, post-judgment or other family law issues. The zealous advocate for each client will engage in discovery, negotiate for the best outcome in light of what a court would do and handle a contested trial on the issues in dispute, if needed. This process is not only expensive, but can have lasting effects on the parties, their children and the ability of the family unit to function post-divorce. The vast majority of family law matters, settle however, so an alternative approach was developed in response in part to the contentiousness of the adversarial process.
Collaborative divorce was meant to avoid the knock-down, drag-out approach that can occur in adversarial cases. In collaborative, the parties and attorneys agree not to use the courts to resolve differences, but to work them out using neutral experts if needed for financial, child-related and other issues. The collaborative process requires 1) that the parties agree up front that they will settle instead of litigate, 2) formal discovery will not be used, but financial and other information will be freely exchanged, 3) neutral experts will be used such as a child specialist, financial expert, shared business evaluator or appraisers, and 4) if the collaborative process is not successful, both collaborative attorneys will withdraw and new trial counsel will be hired.
The cooperative approach to family law matters was developed in part because it is costly for collaborative attorneys to withdraw when they have a wealth of knowledge about a case. Cooperative divorce uses similar methods to the collaborative process in the free exchange of information and avoiding court, but if there is a break down in the process, the attorneys do not have to withdraw. They can stay on the case as the trial counsel. Most good family law attorneys take a cooperative approach even to adversarial cases.
Mediation, which is used in many contexts in divorce is used more frequently as a method to negotiate the issues in a family law matters where the parties are pro se. Mediation is required in custody and placement disputes and this mediation usually occurs without attorneys present and through court appointed mediators. Mediation is also frequently ordered or agreed to in adversarial cases when a case is ready for trial, but the parties may be able to resolve some or all of the issues using a trained third party neutral to help them negotiate. It is also becoming more common for unrepresented parties to hire a mediator to assist them both in reaching a settlement and in drafting a final agreement. This is now permitted under Wis. Stat. § 20:2.4 (c)(1).
So which method is best for your case or issues? Some basic truths apply. First, if you need discovery because a party will not freely give information, or you need to subpoena documents, then you should select the adversarial approach. The traditional approach may also be best if you have a novel legal issue that requires a court to advance or clarify the law. The collaborative approach works well if the parties are civil enough to each other to be able to sit together with counsel in the same room and solve problems. It will not work well if the parties cannot communicate civilly or there is a party who lives out of state. Collaborative approach can be difficult, but not impossible, if there are domestic violence issues (although certainly not acceptable if there is an Injunction.) Collaborative can also be difficult if there are serious AODA or mental health issues. You may need the traditional approach in such cases to get the needed help of a Guardian or Guardian ad Litem for a client or to get medical and other records.
Cooperative is a good approach for a party who would like to engage collaboratively with his or her ex-partner, but is not sure that they will be able to settle without court help, or they do not want to seek a new attorney due to their attorney’s special expertise. Cooperative works well for those who can negotiate in the same room together but may need court assistance, including discovery, if the process breaks down. I like to think that most family law attorneys use a cooperative approach even in the traditional cases by exchanging discovery without the need for a formal request and working toward settlement in all cases.
Mediation should be considered regardless of the approach. It can be the first choice and often is for unrepresented parties who wish to resolve their matter in an efficient manner. But in other cases, whether traditional, collaborative or cooperative, if the parties have negotiated but are not able to close the gaps, a neutral mediator can be invaluable in helping each side to see the weaknesses of his or her position or approach and why it might be best to avoid the risk of a trial or leaving the collaborative process.
Perhaps the most important factor in choosing a methodology for a family law matter involves the client’s level of trust of his or her partner. By definition trust is diminished or they would not be involved in a family law case (except maybe paternity cases.) So the question becomes whether the parties can still work together sufficiently to use a collaborative or cooperative approach, or mediation. If they cannot, or if there are factors such as domestic violence, AODA, mental health or other difficulties, they may need to select the traditional approach.
