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Informed Consent: Divorcing Couples Have Options

Are divorce clients’ interests being well-served if the process they enter into is selected by the attorney they choose? Not every client presents with the same needs and goals. A client has the right to determine which process he or she prefers, which may not necessarily be the process preferred by the attorney with whom the client happens to consult. Family law practitioners would be wise to make it their business to familiarize themselves with the process options available to a divorcing spouse in order to fully counsel the client.

Over the past decade, addressing the needs of high conflict couples and the incidents of domestic violence between warring couples has preoccupied the family court system. Is the adversarial model of litigation contributing to the conflict? Is a model that pits one parent against the other in evidentiary hearings likely to bode well for the couple co-parenting in the future? Are we stuck with the traditional system?

Prospective divorce clients should be fully informed of all of the options available to them when confronted with divorce or separation. These include mediation, collaboration, and litigation.

In a medical setting, the doctrine of informed consent has been long established. The patient, who may be traumatized by a life-threatening illness, is entitled to a description of the procedure, any reasonable alternatives, and the risks associated with each procedure. The patient is entitled to make an informed decision, weighing all of the relevant factors as set forth by the medical care provider. A particular physician’s lack of expertise with regard to a certain procedure does not excuse the need to disclose to the patient all available information.

The divorce client should be entitled to no less than a full explanation of all alternatives.

An initial consultation with a client seeking divorce should always include a description of the various modalities accepted by the court system. At a high level these options are as follows.

Pro Se Resolution
First, a client may choose to represent himself or herself in the process as a pro se party. The client may go to the court service center for the “do-it-yourself divorce kit.” There the client will be assisted by a specially trained and often bilingual court staff. The client will be guided through the process from service of the complaint to requesting fee waivers to final judgment. In family court, the prevalence of the self-represented party is much more common than most attorneys believe.

Neutral Attorney-Mediator
Second, a client may participate in mediation with a neutral attorney-mediator who does not file an appearance or represent either client. The better practice for the client in mediation is to have consulting counsel review the final agreement and/or give legal advice to assist the client throughout the mediation process. This process is well-suited to many couples, especially where all of the relevant financial information is readily available to and understood by each spouse. The couple usually shares the cost of one mediator instead of each spouse retaining an individual attorney, and consulting counsel is often paid on an as-needed basis. Mediation is not only cost-effective—it actually teaches the couple how to discuss areas of disagreement in a positive solution-oriented manner, which very often carries on post-divorce.

Collaborative Process
The third modality is known as the collaborative process, which involves a “no court pledge” and resolution of issues during a series of four-way meetings. Each client is represented in the process by collaboratively trained counsel of his or her selection. Often, ancillary professionals, such as forensic accountants and child psychologists, are brought into the process to bring their specialized knowledge to generate solutions to bear for the couple. As in mediation, the couple participates in positive problem-solving methods to reach an agreement that each party has helped create and understands. During the collaborative process, the couple is actively encouraged to gather the necessary factual information; raise issues of concern; describe their needs, concerns, and goals; and generate solutions to the problems.

It is important to note that since the case is resolved through four-way meetings, all communication is transparent: Everyone hears the same thing at the same time. A couple will experience the same process in mediation; however, during the collaborative process, the client is assisted by counsel at every meeting. Most importantly, the couple learns how to discuss areas of disagreement without “going into battle.” Compared to litigation, the collaborative process is cost-efficient, as there is no downtime waiting to be heard in court or to be seen by a family relations officer. At each and every meeting, the couple’s needs and issues are discussed and addressed.

Traditional Litigation
Finally, there is the traditional litigation model. The parties hire attorneys who communicate with their respective clients and with each other. They are prohibited from communicating in any manner with the adverse client. When four-way meetings are held, each side comes into the meeting with a strategy for negotiation and tries to utilize information to leverage his or her position. Disputes are resolved by the court at trial, in evidentiary hearings, or by way of arguments of counsel before the court. Unfortunately, in cases involving children, the nature of the adversarial system is to place the parents at odds with each other in a contest to see who can win. Of course, the children are often the casualties in this type of battle.

To be sure, traditional litigation has its place. There are many examples: One spouse may have exclusive access to assets and information; one spouse may be a member of a closely-held family business; one or both spouses may have significant mental health issues that may interfere with the ability to participate in an alternative process; or the couple may have a history of domestic violence. Any of these reasons may impede forthright dialogue about the pending issues and investigation of financial information.

Most clients seeking divorce counsel are traumatized, anxious, and feeling a sense of helplessness. As in the medical setting, these clients need to be fully informed of the options available, as well as the pros and cons of each approach, before they make a decision as to how to proceed. Very often, actions taken or not taken at the commencement of the case can determine the tone and tenor of not only the divorce case but of the future of the reconstituted family. The needs of children are of paramount concern to the court and should also be a matter of concern to the parents and their attorneys. Careful consideration of all options available to the couple should be the very first assistance provided by competent and caring family law practitioners.

Keywords: Alternative dispute resolution, ADR, family law, divorce proceedings, mediation

Debra C, Ruel, Esq., is a partner at Rome McGuigan, PC, in Hartford, Conneticut. Ms. Ruel specializes in family law and can be reached at druel@rms-law.com.

This article appears in the forthcoming winter 2009 issue of Conflict Management, from the Alternative Dispute Resolution Committee.

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Copyright © 2012, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).