As has been discussed many times on this blog, my bias is that in Nashville, and probably in Tennessee in general, we have flipped the exception and the rule in terms of divorce process options. Currently, the default process is litigation and the exception is Collaborative Divorce. Since I believe most people going through a divorce are in crisis and need support and guidance, but do not necessarily hate each other, Collaborative Divorce could be the default and litigation could be reserved for clients who do not have the capacity to make decisions on their own, have mental health issues, or other factors that would make Collaborative Divorce not a good choice. For more discussion about when Collaborative Divorce is probably not appropriate see this prior post.
In any event, the important thing is that clients are informed of their options and make a decision for themselves about which process they think will work best for them and their family. Here is a short summary of the differences between Collaborative Divorce and divorce litigation as they are typically practiced in Middle Tennessee:
Collaborative Divorce Litigation
*Divorce is a life event *Divorce is a lawsuit
with legal, emotional, and financial elements
*Frame is Settlement Negotiation *Frame is Competition for Limited Resources
*Focus on future *Focus on past
*Clients responsible for outcome *Judge responsible for outcome
*Life goals drive decision-making *Perceived legal “rights” drive negotiation
*Team of interdisciplinary professionals *Lawyer is soldier for his/her client in a vacuum
*Process is planned and largely predictable *Surprises (“pulling a fast one”) are often applauded
*Information is shared transparently *Information disclosed only when required by law
*Settlement discussions are private *Court hearings, trials, and documents are public
*Lawyers are advisors *Lawyers are protectors/ zealous advocates
As clients decide which process (or another process such as mediation or co-mediation) is right for them, I think it is important for them to spend time thinking about the overall culture and philosophy of the processes available to them in order to make an informed decision, making sure their vision of the divorce matches the philosophical framework of the divorce process they choose.
Divorce is a major life event and it is easy for the legal process to be out of sync with where parties are emotionally, and what they want from the divorce in ways in that can make an already bad thing much worse. As divorce attorneys and other professionals I think we owe it to our clients to do what we can not to be part of the problem by being sure we make clients aware of all of their process options.