What kind of attorney do I need?

You've decided you need an attorney to assist with your divorce, but did you know there are different types of Family Law attorneys? You may hire a litigator to represent you against the opposing party, an Attorney/Mediator who does not represent you or the other side but rather is neutral and assists you and your spouse in resolving the issues, or a Collaborative Attorney who represents you while a separate Collaborative Attorney represents your spouse.

Most Family Law attorneys are litigators, which means that while they may attempt to reach an agreement with the opposing party, if they are unsuccessful they obtain orders by filing a motion and going to court. While it is far better for the parties and children involved for the parties to resolve disputed issues by agreement, the reality is that most people going through a divorce are unable to do so. Emotions get in the way of rationale decisions. I am a litigator. My first and greatest effort is to resolve the issues through the opposing party or their attorney without the necessity of formal court proceedings where a judge ultimately decides what he or she thinks is best. But if the other side is unable to be reasonable, or anger has reached a point compromise is not possible, it's time to obtain orders from the court.


When divorcing couples are able to communicate rationally and without anger or judgment, they may be better served by an Attorney/Mediator. A Mediator (not to be confused with a child custody mediator, who is typically not an attorney but a therapist) can assist these couples by helping them work through the issues, making mutual decisions for a parenting plan for their children, support, division of assets and debts, and preparing the legal paperwork to finalize the divorce. The drawback to mediation is that if the parties are unable to reach an agreement, the process falls apart and each party is faced with then hiring their own attorney to represent them in contested proceedings because the Mediator can no longer represent either party.


A newer process has evolved that is designed to help people too conflicted for mediation but who desire to maintain control of the outcome of their dissolution. With Collaborative Law, each party is represented by a Collaborative Attorney, but they sign an agreement not to resolve disputes by going to court. This keeps the parties focused on resolving the issues by agreement, even when the going gets tough. In order to do this, each side may employ 'divorce coaches' to assist with the emotional aspects of a contested divorce, and child custody mediators to help the parties formulate a parenting plan for their children. The objective is to keep the disagreements out of court in order to maintain control of the outcome.


Mediators and Collaborative Attorneys both advocate one benefit of their process being reduced legal fees. I know I'll hear from my colleagues on this, but sometimes legal fees are less, and sometimes they are much more. Some couples spend several thousand dollars on mediation only to reach an impasse one one or more issues, and they then abandon the mediation process and each hire their own litigators.


With Collaborative Law, each side is paying an attorney, sometimes a 'divorce coach', a private child custody mediator, and at times a financial consultant. Even if the process is successful, it can cost more than contested litigation. Alternatively, if the process is successful the parties have learned a great deal about resolving their differences through a cooperative approach and are less likely to return to court over the years to resolve ongoing custody and support issues.


Which type of attorney you hire to assist you is a decision only you can make. As smart as we like to think we are, attorneys are not able to predict how your spouse will react or the outcome of your case. That's why we charge by the hour instead of quoting clients a flat rate for their divorce - we don't know your spouse and therefor don't know what we are getting into.

If I believe a client will be better served by mediation or a collaborative approach, I will refer them to someone competent to help them. I almost always discuss the options with new clients. I also make every effort to resolve differences between parties by agreement. Litigators, Attorney Mediators, and Collaborative Attorneys all agree parties to a divorce are better served by compromise and agreement in resolving their differences rather than maintaining an aggressive position in court.


Please feel free to link this blog and follow the coming articles. I will have a guest Attorney Mediator and Collaborative Attorney provide their perspectives on mediation and collaborative law to help you make the right decision for you.