Mediation in Family Law
Introducing students to ‘collaborative divorce’
“Thirty years ago, when I sat in your seat in a Family Law class, the only tool we had was litigation. Every divorce went to trial,” said Corinne DeStefano ’82, in her introduction to collaborative divorce, an innovative process designed to minimize the acrimony and protracted legal process that can characterize the end of a marriage.
DeStefano was joined by colleagues Sue Horowitz, LCSW (pictured, right), a mental health professional, and Craig Hydahl, CFP, CDFA (pictured, center), a financial planner. They work together as a team to help divorcing couples customize a settlement outside of the court system that divides the financial assets and focuses on the future co-parenting relation. All negotiations in collaborative divorce are done in an atmosphere of respect, transparency and civilized communications, without the adversarial posturing often at the root of contentious divorce proceedings.
This presentation was part of the Family Law Mediation course, one of Seton Hall Law’s Winter Intersession classes. Students attend for four days to earn two credits. The course is co-taught by Elizabeth M. Vinhal ’00 and Maurice Robinson, professors who are in private practice – a divorce attorney and a divorce mediator, respectively. They give students an understanding of the type of dispute resolution techniques they will most likely utilize in a divorce, an essential skill since today, nearly 99 percent of all divorce cases are settled without trial.
Collaborative divorce is a growing movement in the U.S., emerging in the early 1990s, along with mediation, as an alternative to costly litigation. Mediation utilizes a neutral third party to help divorcing couples to facilitate a settlement and while it is effective for many couples, the collaborative divorce takes the negotiation process further, especially beneficial when children are involved. The spouses, their attorneys, a mental health professional and financial advisor work together each step of the way to keep the partnering relationship intact to the extent possible, so the divorcing spouses can put the needs of the children first.
As a mental health professional and family therapist, Sue Horowitz coaches spouses through the emotional aspect of the divorce process. She sees collaborative divorce as a more effective path than litigation or even mediation toward enabling divorcing couples to remain “forever parents.” She said, “I could never get my head around how couples carry high levels of anger, act it out through an adversarial process, and then attempt to co-parent children afterward.”
DeStefano emphasized that while collaborative divorce may offer a more amicable approach to ending a marriage, both spouses must be invested in the effort and take the process seriously. “Before we begin, the parties must understand the commitment they are undertaking. Both spouses must sign a Participation Agreement. And it’s in their best interest to make it work. If it fails and they decide to litigate, any information we have gathered, any conclusions we have reached or agreements we have made, it’s all thrown out. The spouses must choose new attorneys and the process begins from scratch.”
She also assured students that collaborative divorce does not diminish her role as an advocate for her client. “I may call opposing counsel a ‘colleague’ rather than ‘adversary,’ but ‘collaborative’ does not mean that everyone gets to do what they want. It’s still a negotiation and when I sit at the table, I represent my client to ensure his or her needs are met.”
At the start of the process, the team meets to define the divorcing couple’s goals for themselves, their children and their future interactions. Horowitz explained the difference between “positions” and the interests that underlie goals. Couples will be asked to project themselves into the future with important overarching goals – such as financial security, or the kind of time they want to spend with their children. We want to move them off of ‘positions,’ – statements like, ‘I will keep the house, no matter what,’ that can stall a negotiation and often aren’t financially realistic.”
Finances obviously take on a new significance during divorce. As Horowitz explained, “Money is emotional.” During the collaborative process, Craig Hydahl, a financial planner, helps both spouses gain financial clarity. He spoke of a woman who thanked him at the end of the process: “She was a stay-at-home mom for years, but the divorce meant she’d have to find a job, a difficult but necessary choice. But she said to me, ‘I really appreciate your answering all those financial questions that are running through my head at 2 in the morning.’ People don’t always like the answers I give them, but after we work together, they know what their futures look like.”
DeStefano is a member of the International Academy of Collaborative Professionals, an organization working to train attorneys to build their expertise in collaborative divorce, as well as the New Jersey Collaborative Law Group, a practice group in New Jersey. A council of New Jersey practice groups is attempting to push the Uniform Collaborative Law Act into law in New Jersey and to advocate for established protocols at the state level. She sees collaborative divorce as a growing trend in family law practice. “It’s a sad fact that 50 percent of marriages will end in divorce. Collaborative divorce allows the parties to maintain control over their divorce. And it has the added benefit of helping couples and families transition emotionally to the next stage of their lives more quickly. In a few years’ time, I believe collaborative divorce will be an essential part of every family law practice.”