Lancaster Law Blog : Lancaster PA Lawyer & Attorney : Russell Krafft & Gruber Law Firm : Pennsylvania : Lancaster's Legal Link

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When it comes to divorce, there are multiple ways for parties to arrive at an agreement. Occasionally I am asked by clients to review a marital settlement agreement that was reached as a result of a mediation conference. There are also occasions when clients come to an initial meeting with me and ask the difference between mediation and Collaborative Law. Although there is an increasing awareness of both alternatives, it is still common to get elements of the two processes confused. In order to distinguish more clearly between the two, especially for those who may be interested in pursuing either as an alternative route in their divorce, the following is my explanation in a nutshell.

In mediation, an impartial third party, who acts as the mediator, assists the parties with their negotiations and tries to help them settle their dispute. The mediator does not have to be an attorney and cannot act as an advocate for either side or give either party legal advice. In other words, if an agreement contains terms that are grossly unfair to one party, the mediator may not recognize them and, even if he or she does, is not permitted to give legal advice about the issue or any other issue. If both parties have attorneys who are not present at the mediation, they are free to contact them for advice in between mediation sessions. However, when the attorneys are not present during mediation, they are essentially unable to give their clients legal advice throughout the ongoing negotiations. Once an agreement has been reached between the parties, the mediator will typically prepare a draft of it for review and comment by the parties and attorneys before it is signed.

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A few weeks ago I watched a program on ABC Primetime called "Divorce Without Separation", about an Arizona couple who chose to live together while they were divorcing. I know some couples choose to live together while they work out the intricacies of their divorce but, in my experience, it is not common. Since I don't often run into couples who choose to live together during a divorce, I found this show especially interesting to see how this particular couple worked through the divorce process under those circumstances.

The couple chose to use mediation to resolve equitable distribution, support, alimony and custody issues. It appeared that they each retained a lawyer to review the terms of their Postnuptial Agreement and the decisions about how to divide their assets were done with a skilled mediator whose office, interestingly, was situated inside a legal office.

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Meeting with a lawyer for the first time about a divorce can be overwhelming for a number of reasons. Obviously, clients most likely are experiencing emotional trauma over the loss of their relationship and uncertainty about their future. Navigating the legal intricacies of the divorce process adds yet another element of uncertainty to the situation. For a client who is unfamiliar with the legal process, learning about options and discussing ways in which to proceed during the most stressful  time of their life can be confusing. However, it is a critical meeting — one at which the lawyer can assess the client's situation and priorities, and one at which the client can become comfortable with the lawyer.

Clients often have no idea what to expect from the initial consultation. At the very least, I believe that the client should leave my office that day knowing that he or she has choices, that there is no "one size fits all" method for divorcing, and that I have some understanding of the issues their case will present. In developing an understanding of the issues, it is necessary to have information about the nature of the parties’ marital estate, including their assets and liabilities. It is particularly helpful if clients bring along the following documents when they meet with me for the first time to discuss their divorce:

• Copies of their most recent Federal Income Tax Return, including W-2s, 1099s and schedules.
• Copies of recent paystubs.
• A copy of all recent mortgage and/or home equity loan statements, for all properties owned; if a home is in foreclosure, a copy of the most recent Act 91 Notice.
• Recent statements for all investment and retirement accounts, including 401(k)s, IRAs and pensions.
• Recent bank account statements.
• Annual income statements from the Social Security Administration.
• Information regarding the value of any business interests.
• Documentation of loan balances, credit card debts or outstanding medical bills 

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Most divorce cases require the use of outside experts to assist with the valuation of marital assets, including real estate, retirement accounts or a family business. The collaborative process is not any different in that those values still need to be obtained in order to negotiate an appropriate settlement that takes into account the needs and goals of both parties. However, a collaborative divorce will likely include just one financial expert to provide a neutral valuation of an asset, rather than a "battle of the experts". In the litigation model, it is not unusual for both parties to obtain their own property appraisals from their own paid expert, requiring both parties to dedicate much-needed resources to obtain a valuation. 

In the collaborative model, one expert can be retained, who will provide a neutral valuation. The use of a collaboratively-trained financial specialist in a collaborative case can also be helpful. Such a financial specialist can provide a financial analysis of the marital estate, evaluate the tax consequences of certain dispositions, develop current and future cash flow analysis, and illustrate long-term financial projections for both parties. Ideally, the financial specialist will model alternatives for dividing assets to ensure financial security for both parties. The financial specialist may also be able to assist with providing clients creative solutions to enhance the total value of their assets available to both. 

This "team approach" to the divorce process helps each party to make fully-informed and carefully considered settlement decisions.  It also allows the parties to have greater control over what their futures will look like after their divorce is final.

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When I became an attorney, I never imagined that I would actually look for ways to help clients stay out of the courtroom. After all, one of the reasons the legal profession interested me was that I could argue and advocate for clients in court (an '80s child, I admittedly watched too much L.A. Law).

At any rate, since I entered private practice nearly 9 years ago, I have met with hundreds of people about their options for divorcing. It's not uncommon for someone to come in to my office for an initial consultation and tell me that they would like to divorce and resolve related issues like custody, child support and spousal support without going to court. Even with the best legal representation, litigation can be an uncertain and frightening experience. It's simply not the right choice for everyone or every family. I wanted to be able to provide an option to those clients who are weary of litigation and believe they can work out a solution without the need for court intervention. For that reason, I recently became trained to practice the collaborative method, or what's familiarly called "Collaborative Law".

The hallmark of a collaborative case is a Participation Agreement, which is a written agreement where both parties commit to resolve the matter outside of court. Each client has his or her own attorney to help them through the process, providing advice about options and creative solutions for moving forward. If necessary, a financial expert and family specialist (often a psychologist) will help the family work through asset valuation or custody issues. The goal of the collaborative model is to reduce the conflict within a family so that at the conclusion of the divorce, the parties can move on with their lives without some of the emotional and financial harm that can sometimes occur during the traditional litigation model.

To date, Collaborative Law is still a relatively new option for Lancaster County residents to pursue. It is my hope that by educating clients and other professionals including, attorneys, financial experts and family therapists, Collaborative Law will offer an additional option clients can utilize to reach constructive agreements about the dissolution of their marriage.

In the next few weeks I will be posting additional articles covering Collaborative Law in more detail.