Collaborative divorce has been a statutory alternative in North Carolina for over ten years. However, this option, which aims to be a healthier process than court for couples going through divorce remains underutilized, and many members of the family bar continue to resist embracing the process as a valid alternative to more adversarial divorce.
A decade before collaborative law proceedings were statutorily introduced in North Carolina, mediation as an alternative to court was struggling to gain acceptance. Proponents of mediation took a particular path to advance the use of mediation. Mediation is now widely accepted in North Carolina as part of the dispute resolution landscape and the divorce process in particular. However, proponents have paid a cost in exchange for this broad acceptance. This article explores what proponents of the collaborative process might learn from the experience of proponents of mediation in North Carolina.
A Short History of Mediation
Mediation as a way to help couples reach marital settlement agreements outside of divorce court developed in the 1970s. In its early forms, it was as much a counseling function as it was a dispute resolution method. Certain mental health professionals, such as O. J. Coogler in Atlanta (who was also an attorney), and Howard Irving at the University of Toronto, worked with families in conflict. They observed the devastating impact of divorce proceedings where children were traumatized by finding themselves in the midst of terrible and protracted conflict between their parents and in which life savings were drained by the need to fuel perpetual court hearings. These therapists invited couples going through divorce to sit with them and, with their professional help, work to come to their own decisions about how to divorce—how to parent from two households, how to cover the expenses of the two households, and how to divide the things that had been accumulated during the years of marriage.
Certain attorneys, such as Gary Friedman in California, were also attracted to this early mediation model as a way to avoid the divisiveness of court and the destructiveness of the adversarial system. These early attorney adopters of mediation radically changed the way they approached conflict. They pulled the concept of interest-based negotiation from negotiation theory to replace the positional-based bargaining style of negotiation they had practiced as litigation attorneys. They learned from the mental health profession new skills in how to make communication less confrontational and more likely to be heard by the other person in the course of negotiations. They helped advance the discipline of conflict resolution at places like the Harvard Negotiation Project.
Mediation in North Carolina
Mediation in its original form was roundly criticized by many attorneys who viewed it as eliminating valuable legal safeguards incorporated into the litigation system. Proponents of mediation, including much of the judiciary, nonetheless advanced the use of mediation over the concerns of attorneys by legislating it as a mandatory adjunct to many civil, and even criminal, court proceedings. Attorneys were forced to adopt mediation.
Rather than mediation changing attorneys’ approach to conflict resolution, however, attorneys changed mediation to fit the adversarial paradigm in which attorneys operate. The mediator has become desired as a legal expert who stands in for a judge, rather than as a conciliator versed in interpersonal conflict resolution techniques. Mediation as an extension of the adversarial process in North Carolina has virtually eclipsed the original form of mediation practiced by mental health professionals and attorneys like Gary Friedman.
Gary Friedman visited North Carolina in February of 2013. He met with over 200 North Carolina mediators at the annual meeting of the NC Bar Association’s Dispute Resolution Section. He seemed taken aback by the degree to which mediation has become largely an extension of court proceedings. He found little effort on the part of mediators in North Carolina to transform the conflict, or to help improve the way two people are relating, or to allow the parties to determine the outcome for themselves, or to intentionally explore win/win scenarios. Friedman found the approach to mediation in North Carolina so different from his understanding of mediation that he remarked that it felt a little like he had landed on Mars.
Thus, through the efforts of its proponents, mediation has become widely adopted as a process for dispute resolution, but at the cost, some would say, of healthier and deeper conflict resolution.
Collaborative Divorce Proceedings
Collaborative law proceedings, as defined in the family law statutes at N.C. Gen. Stat. § 50-70 et seq., are a second response to the damage caused by litigation to divorcing couples and their families. In the early 1990s, an attorney in Minneapolis named Stu Webb imagined a process for reaching marital settlement agreements where family attorneys agreed they would not go to court if settlement negotiations failed. These attorneys would be settlement specialists, incorporating into one process the best of mediation and the best of legal counseling and advocacy. Webb coined the term “collaborative law.”
The expansion of collaborative law, or collaborative divorce as it is also called, has been guided by leaders around the country who in general have placed a high value on the same things as the early mediation innovators. Collaborative law training has emphasized efforts to transform the interpersonal conflict for the emotional health of the parties, to help improve the way two people are relating in order to reach better agreements, to allow the parties to creatively determine the outcome for themselves rather than restrictively follow statutory dictates, and to intentionally explore win/win scenarios using an interest-based negotiation model.
In North Carolina, collaborative divorce proceedings have become something of a conflict-resolution bastion against the “litigation creep” that took over mediation. In North Carolina, it remains in large part a conflict resolution process free of the adversarial nature of the court system.
Collaborative divorce proceedings have some built-in protections against the fate that mediation has suffered in North Carolina. Primarily, the disqualification of attorneys from going to court means there is no legislative effort to make collaborative law proceedings part of the litigation process. It is clearly an alternative to court. Attorneys who litigate have not been forced to participate in collaborative divorce. If dealing with interpersonal conflict and the emotional components of separation and divorce do not resonate with a particular attorney practicing family law, he or she simply ignores the collaborative process and recommends against it. There has been little effort to make the collaborative process adhere more closely to the litigation process.
The Beginnings of “Litigation Creep” Into Collaborative Divorce
The walls protecting the collaborative divorce process against litigation creep are not impenetrable. Now that some attorneys have had some success in developing a family law practice focused on the collaborative divorce process, competition for clients interested in the collaborative process has encouraged more attorneys to offer collaborative law as an aspect of their practice. It will always be easier for attorneys to bend the collaborative process to make it more similar to negotiations in litigated cases than it will be for attorneys to retool and train as collaborative attorneys and become better skilled in interpersonal conflict resolution.
Bending the Collaborative Process by Incorporating Mandatory Arbitration
An early effort in North Carolina to bend the collaborative process was the effort to adopt into the collaborative process a mandatory arbitration provision. Attorneys, lacking faith that cases could be resolved without the threat of going to court, replaced that threat with the threat of arbitration. The reasoning was that since arbitration is a form of alternative dispute resolution and not a true judicial hearing, it did not violate the core principle of the collaborative process that attorneys were disqualified from going to “court.”
The argument overlooked, however, that arbitration is an adversarial process, and that it is simply a private and less expensive replacement for court. Instead of insulating the collaborative process from court and the adversarial process, an arbitration provision brought a form of court directly into the process. Despite early efforts, the use of a mandatory arbitration provision in the collaborative process does not currently seem to be much pursued.
Bending the Collaborative Process by Incorporating Mandatory Mediation
A more subtle effort to bend the collaborative process is the introduction of mandatory mediation. While at first blush it might seem harmless to suggest that a mediator could be helpful if the parties are struggling to reach an agreement, mediation as it is generally practiced in North Carolina is an adjunct of court. The mediator is often considered very much like a judicial officer, the negotiations are typically highly positional, and the goal of the negotiations is generally to arrive at a result dictated by North Carolina statutes and law and not the needs and interests of the parties. By introducing this form of mediation, litigation attorneys are able to bring the collaborative process into their comfort zone and avoid learning to manage interpersonal conflict and negotiate within the interest-based model.
Bending the Collaborative Process by Negotiating Competitively
The most common way to bend the collaborative process is to use the structure of four-way conferences common in the collaborative process, but retain the positional negotiation model that is common in the adversarial context with the focus on reaching a result dictated by law and the statutes. The attorneys and their clients meet together to decide the terms of the marital settlement agreement. But then the attorneys negotiate using the same conventions as are used in litigated cases. In general, neither the clients nor the attorneys find it comfortable or satisfactory to all be in the same room under these circumstances. Inexperienced collaborative attorneys tend to try it once or twice and then give up on the collaborative process.
Bending the Collaborative Process with the Use of Mental Health Professionals
Non-attorney collaborative professionals are often frustrated by the scarcity of attorneys willing to commit to becoming skilled in the collaborative process and by the scarcity of full-team collaborative cases in North Carolina to date. Realizing that this limitation on the number of attorneys also limits the reach of the collaborative process, non-attorney collaborative professionals have begun to look for ways to use their collaborative skills even if they are engaged in “bent” collaborative cases or even if they are engaged in cases that do not even purport to be collaborative cases. Thus, there is a willingness to provide the non-attorney collaborative specialties, such as coaches and child specialists, in cases where the attorneys negotiate competitively and in cases where the attorneys have initiated litigation. For instance, a child specialist might market to non-collaborative attorneys a service that reflects the role of a child specialist and be willing to provide this type of service in a case in which no collaborative participation agreement is signed. In this way, families get the benefit of a child specialist and perhaps coaches, extending the use of these services, but potentially impeding the expansion of the true collaborative process in which the statutory collaborative law proceedings are followed.
Will families in North Carolina overall be better served if the collaborative process is “bent” in some or all of the respects described above or will they be better served if collaborative professionals insist on maintaining a process that clearly intends to keep out influences from the adversarial court system? Is the history of the maturation of mediation in North Carolina relevant in any significant respects to the development of the collaborative process in North Carolina?
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