“There are so many divorce options: litigation, mediation, negotiation, collaborative law. How do I decide which is best for me?”
Whether your case is complex or simple; if you have many assets or few; or whether the dispute is over money or kids, the same two factors will determine the best dispute resolution process for you: Preferences and Power.
You must 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 or are you anxious to get this over with? 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 preserve the option of 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?
All of these factors will help you assess which process is most likely to lead to a successful outcome for you.
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 accommodator?)
- history of the relationship (was there emotional or physical abuse? Does one of you have a mental illness, or a drug or alcohol dependency?).
- resources: who has the money and ability to withstand each procedural option best?
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.
Before you choose a dispute resolution process, make sure that you have considered all of your preferences, and all the various sources of negotiation power that each of you has. This should help you choose wisely.