Wednesday, September 2, 2009

The Cleavers Divorce: Collaborative Law, Mediation or Litigation - Part I

The votes are cast - The Cleavers and Mediation:

Ward is a businessman and June is a stay-at-home mom. They have two children Wally and Beaver. Ward handles all of the finances and June handles most of the home care including parenting, although once in a while Ward is needed to help discipline the children (in a very stern but fair kind of way).

Ward and June agree that the spark and color had left their marriage long ago and that they were only staying together for the children. They have agreed that a divorce would be best and have already sat down to a family meeting with Wally and the Beaver and explained that although Mom and Dad are getting a divorce, they will still both be involved regularly in the children's lives, that it is not the children's fault and that they both love the children very much.

Ward, eager to move forward with the divorce quickly and as cheaply as possible, suggests that they attend mediation and provides June with the name of a mediator he has found. Agreeing with the logic of using a mediator, June agrees and they attend their first mediation meeting.

At the first meeting, the Mediator explains how mediation works, telling Ward and June that the mediator does not represent either of them, and that their job is only to help Ward and June reach an agreement, not to steer them in any particular direction. The mediator explains that they will both have to provide a Financial Statement and that they should begin thinking about what they each want for a custody and visitation plan, and for the division of assets and liabilities.

After the meeting Ward informs June that he wants joint custody and that he will help her do her Financial Statement since he has all of the financial information. He also wants to sell the house and he asks her to agree to this immediately so they can list the house for sale as soon as possible.

June is worried that she doesn't know enough about their finances to know whether the house has to be sold. She also realizes that she doesn't really know what joint or sole custody means. June talks to her friends who all suggest that she meet with an attorney. After meeting with a few attorneys, June realizes she needs help and hires an attorney. Upon realizing that June has hired an attorney, Ward feels like June was trying to get an advantage behind his back and hires an attorney as well. They end up proceeding through litigation, because June's attorney insists on filing the Complaint for Divorce to protect the assets with the Automatic Stay and to provide for mandatory discovery. Eventually they settle their case at Pre-Trial.

COULD THIS HAVE GONE BETTER: Because of June's lack of knowledge about the finances it was likely that she would feel uncomfortable at some point in the mediation, even if Ward hadn't pushed her at the beginning to be more ready to make decisions. Her lack of information was going to make it difficult for her to make decisions. This could have been resolved by June being more aggressive, but if this has not been the pattern in the marriage it was unlikely to change now. For these reasons June needed an adviser/advocate, i.e. her own lawyer.

If the parties had communicated their intentions better, it is possible June and Ward would still have been able to use mediation, and just have their lawyers advise them individually as to the Agreement and disclosure of financial information.

This was likely a more ideal case for Collaborative Law, because of June's need for a representative. In Collaborative Law both parties and lawyers agree to commit to working towards a settlement and to not file litigation. In a true Collaborative Law agreement, the lawyers also agree that if the case goes to litigation that they will not represent the parties, i.e. both lawyers are thus committed to the settlement path as well. Although there's the danger of having to pay two lawyers each, the advantage is the great potential for a less acrimonious process.

Because both Ward and June committed to settlement, but just had an imbalance of power/knowledge, they would have been best served by Collaborative Law.

There's still time to vote for what the Huxtables and Kramdens should do: leave a comment here.

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