Most Family Law attorneys get the occasional phone call from the client who claims that their divorce is going to be simple and want the attorney to represent both sides. Unfortunately, there are two fundamental problems with this idea.
First, there is no such thing as a “simple” divorce. Ending a marriage is complicated.
Second, one attorney can never represent two parties in a divorce. According to Lawyer Rules 101, a lawyer “Shall not represent a client if the representation of that client will be directly adverse to another client.” There is simply no practical way to complete a divorce where the parties are not at odds with one another.
There are some simple and cost-effective, non-adversarial approaches for resolving a divorce which are recognized in all states of the union: mediation and collaborative law. These two processes fall under the heading of “Alternative Dispute Resolution: and may be a more practical and certainly less-costly solution for the non-adversarial divorce.
Mediation – Divorce Mediation is pretty straight forward. Essentially, a third party, “the mediator,” is a person who helps facilitate communication. This usually happens in a daylong event where everyone is present in one building. The mediator sits with each spouse privately and has the opportunity to go back and forth between the spouses (who are usually separately represented by their own attorney).
The mediator’s job is to gain insight into what is driving the dispute and the reason why each person is taking a particular position. The mediator works with the both spouses until the dispute is resolved or there is an impasse. Obviously, mediation has the added expense of a third party facilitator (the mediator), but this cost is downright cheap compared to the price to have one’s dispute resolved by a judge in open court.
Collaborative Law – Collaborative divorce is a process in which you and your spouse negotiate an acceptable agreement with legal assistance from your respective collaborative attorney. You and your spouse each hire a separate attorney who advises and assists you in negotiating a settlement agreement – usually in one sitting in one day unless there are lots of property and custodial issues and little initial agreement. You meet separately with your own attorney and then the four of you meet together should it be necessary. A collaborative divorce may also involve other professionals, such as a child custody specialist, therapist, tax professional or an accountant. Normally, both spouses and their attorneys sign an agreement that requires the attorneys to withdraw from the case if a settlement is not reached and then the case goes to court. It is almost always better to reach a settlement outside of the courtroom where the judge, who doesn’t know you, or care about you (or you and your children) – and will then make decisions for you.