“There are so many divorce options: litigation, mediation, negotiation, collaborative law. How do I decide which is best for me?
It does not matter whether your case is complex or simple; if you have many assets or few; or whether the dispute is over money or kids. The two most important factors are preferences (what you want) and power (what you can use to get what you want.)
It is important that, before you choose any settlement process, you consult with your lawyer about all your options and discuss these questions with him or her. The more detailed the analysis of your needs and preferences can be, the better your choice will be for you. The two things you should discuss with your lawyer, before choosing any settlement process, are your preferences, and your sources of negotiation power.
Preferences
You must first know what you want before you can choose a process. Is it the most money you can get? Is it fairness? Is it the outcome that most closely resembles what a judge would do? Is it the most amiable relationship for the sake of the children? It is a quick settlement so you can move on?
Is the process by which decisions get made as important to you as the decisions themselves? Or is the outcome what matters most? Do you wish to work together to find the most creative options available to you, or are you anxious to get this over with and move on? Are you willing to accommodate the other person’s needs, or do you need to get what you want? Are you able to sit and negotiate with the other person, or do you need to have someone do it for you? Are you afraid of your partner, or does either of you have any significant concerns about the other’s ability to participate in a mediation or a collaborative process? Do you need to have the ability to go to court to get a restraining order, or a preservation order, or an order for disclosure? Or do you have sufficient trust in the other person to be able to safely waive the protections of the court? Will you feel better knowing that neither of you will use the courts to gain negotiation leverage, or do you think you might need this leverage to get the other person to negotiate reasonably?
It is important that, before you choose any settlement process, you consult with your lawyer about all your options and discuss these questions with him or her. The more detailed the analysis of your needs and preferences can be, the better your choice will be for you.
Power
Power comes from many places: personalities (is either of you the kind of person who has to have their way?); emotions (is either of you experiencing a lot of anger or guilt?); negotiation approach (do you both approach negotiation the same way, or is one of you a hardball negotiator and the other an accommodater?) and the history of the relationship (was there emotional or physical abuse? Does one of you have a mental illness, or a drug or alcohol dependency?).
The most important source of power comes from the respective strengths of your alternatives to a negotiated agreement. By alternatives, we mean what you will do if you do not reach a settlement. Will you need to go to court? Will you be content to do nothing? Can you afford to pursue your alternatives? What are your chances of getting what you want in another process, such as court? What are the other person’s chances? All of these go into determining what your alternative is to a settlement and how strong it is.
Reviewing and analysing these factors with your lawyer will help you choose the best settlement process for you.
