- Family Law
- Dispute Resolution
You Need an Advocate, Not a “Litigator,” “Mediator,” or “Collaborative Lawyer”
It may be difficult to consider the different options available to you as you start the process of your divorce or other family law process. Perhaps you want the divorce done as quickly, amicably, and efficiently as possible. Perhaps you know from the outset that your spouse is going to make things grueling and difficult, and you want someone who’s going to fight for you, buffer you from unnecessary harassment, and pursue possible hidden assets. It may surprise you to know, the two options are not mutually exclusive. At Needle | Cuda, we have experience in a broad range of approaches to a case. This is not one-size-fits-all. Think of it as bespoke lawyering: we carefully tailor our strategy to fit our client. You should have someone at your side who is focused on safeguarding your interests, and who is also flexible and can adapt to your needs as they develop.
If you are interested in mediation, we do that. There are a couple ways to approach mediation, though. There is the model of one mediator with either unrepresented parties, or parties who have only less-involved review counsel. That mediator does not represent you and cannot give you legal advice. We often serve as review counsel – or often come in as counsel after such a mediation has broken down. In that situation, there is no one by your side while the mediation is actually happening, no one looking out for your interests in the heat of negotiation. You are still on your own in the thick of things. Your opportunity to take matters to review counsel likely comes after a concept has already been hammered out, and the other side and the mediator are already wedded to it. You may then be faced with walking away from the mediation rather than signing onto a flawed agreement which does not serve your interests. It is better to have review counsel than no counsel at all, but it gives only part of the benefit a lawyer can provide in guiding the overall strategy of your case before a mediation goes down the wrong path. You may think you are saving money by doing mediation this way, but you are not if you have to abandon such a process and start over – or worse, if you enter into an agreement which is unfair to you and deprives you of benefits that you could have obtained if only you had advocacy on your side.
Another way to do mediation, while also having an advocate in the process, is to pursue it –often before a retired judge – with lawyers on both sides. Before the mediation happens, there is the opportunity to ensure that each side has a chance to request and review documents and information from the other party which may be needed for a mediation that fairly addresses the issues. Each party has the opportunity, through counsel to make their case. You are not on your own. You have a lawyer by your side, counseling you, guiding you, standing up for your claims, and buffering you against the claims of the other party. Even in a friendly negotiation, it is important to be strong: you cannot bargain effectively from your knees. You have the chance to get an idea of what would happen if your case were presented to a judge, but in a much more informal, private setting, and on your own schedule. If you do not like the outcome of a mediation it is nonbinding and you can walk away – and so can the other side. It remains confidential and should not otherwise influence your case. But you have the opportunity to see what a potential result at trial could look like, and you can use that opportunity to take your case out of the crucible of the courthouse legal process and fashion an agreement where you take control of the result, with carefully crafted language, rather than leaving the matter to chance.
Some people considering divorce also find the concept of so-called “Collaborative” divorce attractive. They may not realize the pitfalls in that process, or realize that a “litigated” divorce can still be amicable and collaborative between the parties and counsel. By entering into a “Collaborative” divorce arrangement, you not only agree to not litigate, but also that if the matters turns to litigation then your lawyers have to withdraw and you have to start over with new counsel. That agreement, unfortunately, does not mean that a case that starts out “Collaborative” will not end up being decided by a trial before a judge. A “Collaborative” process which is taking place outside of the oversight of the court may deprive you of certain orders and protections which apply. It may put you behind the proverbial 8 ball if you then need to avail yourself of that court process. In the wrong circumstances, the “Collaborative” process can be actively used by one side to delay and engage in divorce planning to favor their interests, resulting in potential prejudice to the other party and increased expenses as the “Collaborative” process then has to be abandoned and the parties start over. Especially if the power dynamic in the marriage was not in your favor, “Collaborative” divorce can perpetuate that imbalance as it does not allow for strong advocacy in your favor to even the playing field.
Our lawyers at Needle | Cuda can work to pursue your divorce or custody case as amicably as you want – and then if need be, switch gears to a more aggressive legal process if that is what you want, and without a requirement attached for you to find whole new representative in that event. Rather than straitjacketing your case into “Collaborative” or “litigation,” we listen to you, and base our advocacy on that communication. This is about the rest of your life, and we take that very seriously. We have many different kinds of tools at our disposal. Whichever way your case goes, we will be there for you.