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Family Law

Mediation and collaborative divorce vs. litigation

By May 16, 2016May 18th, 2016No Comments

By Gianna Huesch

In the United States, a well-known mediator has taken aim at a well-known divorce writer over the issue of how people should best end their marriage.

Writing in the Huffington Post, “mediation-minded” Mark Baer has published a critique of a famous Jeff Landers’ 2012 Forbes story still circulated today, recommended as a simple discussion of the options you have when you decide to get divorced.  While the article discussed four ways to divorce–DIY, mediated, collaborated, litigated—Landers ultimately pushes for litigated divorce as the best choice, particularly for women.

Mediator Mark Baer on the other hand takes umbrage at particular comments of Landers regarding mediation’s utility. He says Landers’ info is “false and misleading” and the “article clearly designed to frighten divorcing couples into ending their marriages though combat”.

Baer slams Landers for not promoting mediation and collaboration and instead promoting combat, in an arena where solicitors proudly refer to themselves as “gladiators” and “warriors” engaged in “combat” to “win” for their clients, and have slogans like, “We are carnivores: we go for the kill”.

Landers warned his readers that power imbalances and unhealthy behaviour patterns of dominance and submission can be played out in mediation. Baer questions whether combat is so healthy, particularly when a lot of cases are litigated for a lengthy period of time and matters are often brought back to court even after they have concluded when new issues arise. A fact no doubt exploited by many a narcissist divorcee who is enjoying the extended conflict and spotlight.

Both writers argue that screening for domestic violence issues and power imbalances is key, as is practitioners having an understanding of childhood development.

Baer is highly critical of litigation, saying it is costly, destructive and can unnecessarily escalate conflict. There’s a cost to family dynamics as well as harm to children. On the other hand, mediation has the benefits of court caseloads and fees going down, stress levels lowering in both litigants and lawyers, and relationships improving when there is no fighting in court.

Baer also notes that clients learn “many positive things in mediation and collaborative law, such as improved communication and problem-solving skills” as well as co-parenting skills.

Baer argues that most of Landers’ critique of the non-litigated divorce options applies to litigation too. Anyone, whether a mediator, collaborator or litigator can be a biased or inexperienced professional creating an unenforceable, badly drafted document.

Both camps agree that mediation or collaboration may not be options in situations where there is a history or threat of domestic violence (physical and/or mental) or where there are substance abuse issues. But Baer disagrees with Landers that the options are not appropriate for financially complex divorces, saying the problem of spouses hiding income and assets happens just as often in litigation cases, and he clarifies that formal discovery can take place in mediation and collaborative law. Baer concludes,

“Mr. Landers significantly understated all of the situations in which mediation and collaborative divorce are far more appropriate and significantly overstated the situations in which litigation is necessary. Therefore, his advice isn’t worth the paper on which it’s written.”

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Are you interested in working out a divorce settlement without going to court? Here at Alliance Family Law, we have a special interest in the collaborative divorce process. Call Cristina Huesch or one of our solicitors on (02) 6223 2400 to discuss whether a collaborative divorce could work for you


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