"We Can Work It Out"1: Using Cooperative Mediation - a Blend of Collaborative Law and Traditional Mediation - to Resolve Divorce Disputes

Article excerpt

I. INTRODUCTION

Divorce in modern day America is a product of legislative creation,3 designed as an adversarial process focused on rights and responsibilities. Authority to break marital bonds is vested in courts; in the past forty years, however, reliance on judicial determination of the rights and obligations that accrue upon divorce has diminished in favor of private ordering,4 often achieved through alternative dispute resolution (ADR) mechanisms.

Most experts agree that courts are ill-equipped to handle interdisciplinary issues present in divorce cases.5 Courts can address legal issues that arise when a marriage is terminated, but are unable to also ameliorate the psychological and emotional fallout.6 Litigantspecific results that fit particular family situations are often unavailable because statutory restrictions on judicial authority are imposed.7 Judicial labor is reduced when orders fall within parameters adopted by the legislature that make specific fact-finding unnecessary.8 It is more expethent for judges to follow guidelines that provide a one-size-fits-all solution rather than tailor orders to meet individual family needs. Consequently, easing the trauma suffered by a family falls outside judicial purview.

As a result of perceived inadequacies of the court system in dealing with marital disputes, it is not surprising that practitioners and litigants often turn to extra-judicial methods of resolving divorce cases. Two forms of ADR that have been favored in dissolution of marriage actions are mediation, first introduced as an ADR method in the 1970s,9 and collaborative law, the veritable new kid on the block, developed within the past twenty years.10 Today, proponents of each ADR method vocally extol the perceived benefits.11 Detractors are equally strident in highlighting shortcomings.12

Although the practice of each method has beneficial aspects aimed at reducing the trauma associated with divorce litigation, neither adequately fulfills the needs of litigants and lawyers practicing in the area. Rather than eschewing one method in favor of the other, there is a middle ground that combines favorable features of each ADR paradigm to create a hybrid form of "cooperative mediation." The cooperative mediation process proposed here addresses many of the criticisms leveled against mediation and collaborative law. It helps satisfy the parties' needs for procedural and substantive justice, which litigants often feel is lacking in ADR methods. It does not ignore the adversarial nature of divorce, but still focuses on private ordering as the preferred method for resolving divorce disputes in a cost-effective, extra-judicial manner.

Before examining the benefits and shortcomings of mediation and collaborative law and detailing practice parameters for cooperative mediation, Part II of this paper will discuss the adversarial nature of divorce and its historical underpinnings impacting the effectiveness of ADR methods.13 Part UI identifies, critiques, and compares key process features of mediation and collaborative law. Finally, Part IV will explain the proposed paradigm for cooperative mediation and justification for inclusion of certain process features.

II. DIVORCE IS AN ADVERSARIAL, RIGHTS-BASED PROCESS

The adversarial nature of divorce is implicit in the role that marital fault has historically played in divorce actions. Because changes in social and economic status often occur when property rights are divided and obligations are imposed as a result of divorce, the parties' interests generally conflict.1 When a finite amount of resources are available to a family unit comprised of individual interests that cannot be fully satisfied, competition for limited resources causes the adversarial nature of divorce to continue.

The basic concept of assigning rights and obligations upon divorce dates back to ancient times, during which entitlement was predicated upon freedom from fault for the marital breakdown. …