Divorce litigation is expensive; everyone knows that. But did you know that if your attorneys don’t get along, the cost of will be 20% higher?  

I was struck when I heard that fact mentioned at a panel discussion on the topic of what mediation clients can expect if they end up in court. One of the panel members was a Supreme Court referee who handles matrimonial cases; she mentioned a survey that showed that if your attorneys are fighting with each other for the sake of fighting, you and your spouse are going to pay this significantly higher cost.

Attorneys who don’t get along are likely to be inconsiderate of each other and will deny what may seem seem like reasonable requests to you – such as requests to change a deposition or court date due to a work conflict you may have, or give extensions of time to hand over the extensive amount of documents they’ve requested. If your attorneys are hostile toward each other, you can be sure that your divorce will take much longer than it should and you and your spouse will experience greater conflict with each other. Unfortunately, some clients actually think paying the financial and emotional costs associated with this kind of behavior is a necessary sacrifice; they figure if their attorneys cooperate with each other, then they can’t really be advocating for them.

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Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

–  Abraham Lincoln

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When divorcing couples choose to negotiate the terms of their divorces outside of the court system—whether through mediation or collaborative law—they typically have the best intentions going into the process. They want to be fair to each other; they want to conserve time and money by staying out of court; they want to keep their kids out of their disagreements.

But as the process moves forward, some realizations quickly set in: Negotiating financial and child-related issues that affect an entire family is hard work and probably won’t happen as quickly as everyone wants. Emotions flare, and not everyone is able to be their best selves at all times.

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The primary function of a consulting attorney is to provide advice and counsel during the mediation process and provide the support you need to advocate for yourself. This is different from a “review attorney” whose primary job is to review the agreement that has been drafted after the mediation process is over. These are 2 very different roles. If you took my previous advice and are interviewing consulting attorneys, these are 3 important questions to ask.

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I heard someone suggest that when thinking about New Year’s Resolutions you should think about what you can do that will have an impact in 200-400 years.  And that got me thinking about the work I do and how much of an impact it can have on families.

Personally, I want my work to live on through successive generations of families who communicate well and have healthy relationships with others.

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When it comes to choosing an alternative to divorcing in court, both divorce mediation and collaborative divorce have their own unique advantages.

Divorce Mediation

Divorce mediation is a private and confidential method of non-adversarial divorce in which the participants advocate for their own needs and concerns without a lawyer present in the room. The mediator will help the parties reach a consensus through a series of 3-way meetings. Although the negotiations are taking place between the spouses, it is highly recommended that each party has a consulting attorney during the process. The mediator is able to provide the couple with legal information, but a consulting attorney can provide a party with individual legal advice. Additionally, the parties may wish to consult other professionals such as appraisers, financial professionals, accountants, and divorce coaches.

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Mediation is a great process for maintaining limited involvement with attorneys, but they shouldn’t be shut out completely.

Recently I’ve spoken to a number of potential clients who are about to enter into the divorce process and want to use mediation. These clients come from different backgrounds and have different preconceived notions about mediation, but they all share the desire for an attorney-free divorce. And that is when I have the unenviable task of breaking the news to them: even in mediation, you need an attorney.

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Over the past few years, my law and mediation practices have seen a significant increase in requests for prenuptial agreements.  

My clients, whether they come from extensive family wealth, are self-made entrepreneurs, or young professionals just starting out in their careers, come to me with the best of intentions. They love their fiance and look forward to a long and happy marriage.  But sometimes their approach to the prenuptial agreement gets in their own way. The first thing to realize is that a prenuptial agreement, and the negotiations leading up to it, are often harbingers of what the future marriage will bring. Acrimonious prenup negotiations have a tendency to lead to acrimonious marriages, with long-term resentment and unhappiness.

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This fall, I attended a meeting of the International Academy of Collaborative Professionals, where one of the keynote speakers was Donna Hicks, PhD. Throughout Donna’s academic and professional career she has written books about the power of dignity and, specifically, its importance in negotiations of all kinds. Her past clients have included the United States Navy, several large healthcare systems and corporations, and various governments around the world.

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One of the weaknesses of litigated divorce is that it encourages rigid thinking that stands in the way of compromise.

Choosing your battles wisely is an important strategy in all areas of life, including if you are in the process of divorce. Unfortunately, traditional divorce attorneys often neglect to give their clients this advice, encouraging them to fight for everything they say they want, regardless of how impractical, impossible or destructive it may be.  And when the other spouse inevitably takes opposite positions on those same issues, there’s nowhere to go but to the courthouse where both parties will be subjected to the slow-moving and very public litigation process.

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