Many people believe that out-of-court divorce — e.g. through mediation or collaborative divorce — is only for people who get along and don’t fight. I have heard family law attorneys that are unfamiliar with out-of-court divorce describe it as “friendly divorce.” This misperception casts out-of-court divorce as Pollyanna and pacifist, while seeking to portray in-court divorce as a bold fight over rights between angry and stressed out combatants. The great paradox is that out-of-court divorce is the only approach that boldly addresses the emotional issues in divorce, while in-court divorce takes the passive approach.
Out-of-court divorce methods are designed specifically for people who are not getting along, don’t communicate well, are angry and stressed out, and have difficulty acting or thinking reasonably in each other’s presence. In other words: real people. Out-of-court divorce methods encourage people to express their emotions, concerns, and worries. Helping clients to do this in a constructive way is what mediators and collaborative attorneys are trained to do. Nonetheless, if mediators and collaborative attorneys are unable to get the couple to communicate constructively, divorce coaches and mental health experts are utilized.
The object is not to get the people to hold hands again, but to be able to communicate within reaching distance of one another. To borrow an oft cited modern phrase, to achieve a level of “mindfulness” that allows you to participate fully in decisions regarding your future. Helping clients achieve this mental state is central to the mission of out-of-court divorce: to empower people to be in control over their divorce and make informed decisions.
Of course, there will be some people who will refuse to cooperate and will need to be threatened and compelled by a court to act and complete a divorce. But in my estimation those people are the minority.
In contrast, the attorneys involved in in-court divorce don’t want anything to do with the stress and emotion of divorce. They will instead deal with these problems by avoiding them. Or, some will use take advantage of people who are in a highly emotional state. Everyone knows a story about attorneys who actually fan the flames by enabling their clients to fight over every issue (which not coincidentally lines the pockets of the attorney).
Although I believe that such “fan-the flames” attorneys are a minority, even the good attorneys are still fighting with fire, as the adversarial system is just that — adversarial. No one reduces stress and anger or improves cooperation as a result of filing a lawsuit and arguing over the outcome.
Parents often leave a litigated divorce with even more anger toward one another. This can have a devastating effect on families, as the only thing worse for children than prolonged conflict between parents is abject poverty.
Even for people who have no children, the adversarial approach of an in-court divorce can be unnecessarily expensive and stressful, shutting down open communication in a way that inhibits people’s ability to find creative mutually beneficial solutions to their divorce.
And since the attorneys make no effort to help their clients to be fully present during an in-court divorce, many people feel that they were never in control over the process.
So don’t be fooled into thinking that an out-of-court divorce isn’t for real people.
Further reading: What is the "Conflict Trap" in Divorce?