I don’t claim that mediation and collaborative practice is for everyone, but I do maintain that these divorce methods are a possibility for nearly all divorcing couples where substance abuse and domestic violence are not issues. Yet, I also realize that not everyone who is suitable for achieving a divorce without going to court is going to make this choice. So why do some choose divorce in court and others divorce without courts? I have previously written about the role that fear and anger play in making the decision making process. I also think a role can be assigned to how people make rational decisions.
Those who promote divorce in court advertise that they specialize in the rights of one group over another are speaking to those who see the world as a collection of individuals. This message resonates with people who believe that the proper relationship between individuals is established by making sure that their rights as individuals are fully protected. Their guiding principle can often be summed up as: “I take care of mine, you take care of yours, and everything will work out just fine.” The problem with this principle in the divorce context is that the interests of the spouses are no longer in concert. She has to go one direction and he another. The children are put into the middle almost by default.
Our legal system caters to people who follow this principle. The rules involved in a divorce in court really only permit a focus on one’s own interests. There is little discussion about how your interests mesh with the interests of your spouse or children. Those who are not comfortable with this approach find this singular focus to be a source of anxiety, stress, and powerlessness. This is especially true for parents.
There is another category of people who want their interests protected, but distrust the conclusion that “everything will work out just fine” if that's all they focus on. For these people it is important to consider how a decision will affect themselves and others before deciding to act. They have a healthy self-regard, but their concern for how their conduct affects others informs both their actions and the scale of their actions. In contrast to divorce in court, methods of achieving a divorce without courts, such as mediation and collaborative practice are better suited for this group. Both methods allow a couple to understand the interplay of their own self-interests, the interests of their spouse and the interests of their families. This is a big reason why these methods lead to better outcomes and fewer post-divorce disputes.
When facing a divorce, I encourage you to reflect first on how you make decisions. If you like to make decisions in the context of the bigger picture, mediation or collaborative practice might be for you. Even if you are facing a divorce in court, you can still choose an attorney that will help you to make decisions in the context of the bigger picture.