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Pro-Se/Pre-Suit Divorce Mediation

( 52 votes, average: 4.9 out of 5)
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Legal futurist Richard Susskind's new book ''The End of Lawyers?: Rethinking The Nature of Legal Services'' asserts that the legal profession is entering a transformational phase. And, according to Susskind, our current financial woes will accelerate the predicted changes which include more demanding clients, outsourcing, on-line legal services, and automatic document generation.

The family law arena is one area of the law where Susskind's prediction of change is fitting. As I see it, the public is eager to move away from the traditional/attorney-driven model of divorce and towards a more humane and family-friendly mode. The seeds for this shift were sown as an entire generation witnessed the traditional/attorney-driven divorce process perpetrate harm on families that were already at emotional lows. Our current financial crisis is just accelerating the shift.


Academically, professionally, and personally I have spent the last twenty years studying the process of divorce. Today, I mediate divorces with my husband, David Spofford, JD. David gave up the practice of law eighteen years ago and he now finds much satisfaction as a professional mediator. Together we provide divorce mediation and document preparation services. Almost all of our clients have chosen to go through their divorces Pro-Se and they come to us pre-filing. We believe that our practice and our business model represent an emerging trend in family law.

David and I see divorce as a process of family restructuring: the marriage ends, and husband and wife remain mom and dad, eventually becoming grandma and grandpa to the same babies. Contrast this philosophy to the traditional/attorney-driven divorce which exacerbates the husband's and wife's conflicts, gets the kids entangled in a war zone, diverts a substantial percentage of financial resources to attorneys and others, and brings contempt and hate that keep the former spouses stuck for years to come. How illogical is it for a family to spend its financial wealth on two attorneys whose focus is arguing over dividing whatever is left? No thinking human being would ever choose this path. But, sometimes, when people are emotionally vulnerable and feeling betrayed, rejected, and frightened, their senses leave them and they fall prey to the atrocities of adversarial divorce.

We realize that a traditional/attorney-driven divorce is right for some families. This is the way to go when one spouse needs legal protection. So, for example, if one spouse is unaware of what the marital assets are or how much the other spouse earns, s/he may want an attorney to investigate all of these details before agreeing to any financial arrangements. Additionally, if one spouse feels intimidated as the result of domestic violence or coercion, negotiating without a lawyer is a bad idea.

However, many of the clients who end up with a traditional/attorney-driven divorce wouldn't be there if they knew that another option existed. Our mission is to let it be known that there is a better way. And, as we continue to spread the word, our clientele has grown. Yes, we are seeing many middle income people struggling financially, unable to afford two retainers and the discovery process that is involved in a traditional/attorney-driven divorce. And we are also seeing people who have amassed substantial wealth and don't want to divide it three ways – yours, mine and the lawyers.

Pro-Se/Pre-Suit divorce mediation offers clients a format for communication and a model that promotes problem solving. The unique agreement that a couple creates in mediation serves to guide their family into the future. Typically these agreements cover future parenting plans and how finances (and child support) will be handled after the divorce. Mediation becomes a time for negotiation and opening up the channels of communication. At mediation a couple is encouraged to talk about what is working, what is not working, and how their family should function in the future. As mediators we help our clients identify, articulate and/or re-frame their needs and issues. We foster problem solving, provide information and options, and explore settlement alternatives.

Typically, the process takes between two and ten hours, depending on the issues and the personalities involved. Some divorces can be mediated in a single session. And, sometimes the process occurs over a few months time, in a series of face-to-face sessions. When mediation is complete we prepare the agreement and fill-in the state approved forms. If a couple needs a QDRO (to divide a pension), a deed, or revisions to their estate plans, we refer them to legal resources. Many of our clients take their agreements to attorneys and/or accountants for review prior to signing. Ultimately, the agreement and other documents are signed and filed with the Clerk of the Court, and the case is set for a final hearing as an uncontested dissolution of marriage.

As cutbacks in court funding continue to eliminate the assistance and information that was once available to the do-it-yourselfers who now seek our help, the market continues to grow. Susskind, the futurist, sees a whole new set of jobs for progressive lawyers who are prepared to spread their wings. I believe that Pro-Se/Pre-Suit Divorce Mediator will be one of those jobs.

About the Author

Elinor Robin, PhD, is a Florida Supreme Court Certified Mediator and Mediation Trainer located in Boca Raton, FL. Elinor has served on the faculty of mediation and dispute resolution symposiums throughout Florida as well as nationally and internationally. She brings her academic pursuits, a background in small business and a wide range of experiences from within the family, juvenile, civil, and criminal courts to her teaching. Elinor will be presenting four ''A Friendly Divorce'' workshops nationally during 2009 to those who want to ride the wave of this emerging trend. To learn more visit her websites www.ElinorRobin.com or www.AfriendlyDivorce.com or contact her at elinorobin@aol.com.

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