One of Us Wants Mediation, the Other Seeks War
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One Question, Three Lawyers
Dear Splitopia: I want to mediate or go the collaborative route, but my future ex doesn’t seem to get it. She hired a mean lawyer who keeps sending me threatening letters. What do I do now?
Our Panel Says:
Michael Stutman, family lawyer, New York City: In order to mediate or be “collaborative,” like the tango—you generally don’t do it alone. It seems your future ex is not interested in that dance at this point. You should retain counsel who is experienced both in alternative dispute resolution and the more traditional advocacy models. Maybe she or he will be able to convince the mean lawyer to try it a different way.
Naomi Cahn, law professor, George Washington University: First, if they really are threatening letters, then make sure you protect yourself against those threats. Second, it takes two to mediate or collaborate; your future ex might have been determined to find a lawyer who will act aggressively towards you and does not want to collaborate. Sometimes, someone is so angry that he or she does not want to try to work through the issues together. If there is any way for you to talk about this with your future ex, then that would be very useful. Sometimes, people don’t know about the possibility of a collaborative or cooperative divorce.
On the other hand, a divorce often mimics the marriage; if you didn’t have big arguments when you were married, then you may not have huge conflict when you divorce, but if you repeatedly had bad fights during your marriage, then it may be hard even to imagine a more friendly divorce. (Did I mention how important it is to try to talk this through with your future ex?)
Third, legal ethical rules establish that if a lawyer knows you are represented, there are strict limits on direct communication with you (essentially, unless your lawyer consents or the other lawyer is permitted to contact you based on another law or court order, then the other lawyer can’t talk to you about anything having to do with the representation.) Finally, if your future ex has been abusive, then mediation is not appropriate.
Janice Green, family lawyer, Austin, TX: Do not respond to the threatening letters. You can retain your own attorney to respond. This is not a good sign that your case is appropriate for mediation or collaboration—at least at this point. Spouses often hire an attorney whose “style” reflects the spouse's personality.
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About our Panel:
Michael Stutman has more than 30 years of family law experience, handling both settlements and court trials. Michael is immediate past president of the American Academy of Matrimonial Lawyers, New York Chapter. He is also a Fellow of the Academy and serves on its National Board of Governors. Michael is also the author of Divorce in New York: The Legal Process, Your Rights, and What to Expect (Addicus Books, 2013). You can contact him at: Michael@sasllaw.com
Naomi Cahn is the Harold H. Greene Professor of Law at The George Washington University Law School. She is the co-author, along with law professor June Carbone, of Marriage Markets: How Inequality Is Remaking the American Family (Oxford University Press, 2014) and Red Families v. Blue Families: Legal Polarization and the Creation of Culture (Oxford University Press, 2010) as well as the leading family law textbook Contemporary Family Law. Her work has been featured in The New York Times, The Washington Post, The Christian Science Monitor and The New Yorker. Find more at: law.gwu.edu.
Janice Green is a family law attorney who has been practicing in Austin, TX, for the past 35 years. She is the author of Divorce After 50: Your Guide to the Unique Legal & Financial Challenges (NOLO, 2013). She is Board Certified in Family Law by the Texas Board of Legal Specialization, a Fellow in the American Academy of Matrimonial Lawyers, and has been named to Best Lawyers in America, and as a Texas Monthly Super Lawyer. For the past 10 years, she’s focused exclusively on collaborative divorce. Find more at: janicelgreen.com.
And now, some legalese:
The information in this blog post is provided for general purposes only. It may not reflect the current law in your county and doesn’t replace legal advice. This post is not intended to be a substitute for legal counsel. No attorney-client relationship has been established by reading the post.
