Feature Story

By Trudy Helmsing

Lagniappe staff

Two years ago, Jennifer McDonald was about to begin a career in traditional family law. While watching divorce trials to prepare herself for the job, she began to notice how beaten down both parties were when the trial was over. One in particular reinforced this point-of-view.

“I saw this woman, and my heart just broke for her. She looked like she was having the worst day of her life,” McDonald said, adding that every little thing that could be used against her was dragged out in the process.

“I thought I cannot be a part of this. I almost considered changing fields,” she said.

Instead, McDonald decided to go into the practice of non-adversarial divorce mediation.

In a traditional adversarial divorce, both parties generally have their own lawyer, causing them to become opponents. This can lead to increased aggression between the two, as neither trusts what the other one says due to the feeling that they are at battle with one another. This form of divorce not only becomes expensive, but can also be damaging to the family, especially if children are involved.

“It’s hard to discuss things like parenting, because they are afraid anything they say can be used against them in litigation,” McDonald said.

“The divorce process can intensify the pain and anger that the parties are already experiencing. Things may be said that will never be forgiven. Some divorcing parents forget they will always be part of each other’s lives. No matter how much a person hates their spouse, their children do not feel that way.”

In a non-adversarial divorce, on the other hand, the two parties are encouraged to work together to not dwell in the mistakes of the past, but instead to concentrate on the future of everyone involved. This form of divorce has gained popularity on the West coast and in parts of New England. McDonald would like to see it increase Mobile.

“I think every divorcing couple who has children should at least attempt a non-adversarial divorce,” she said.

One of the most important benefits of non-adversarial divorce is that the decisions about the family are actually made by the family, not by a judge who has never met hem before.

With the two parties working together, rather than being pitted against each other, feelings of resentment are lessened, McDonald said. This will make it easier for the two parents to communicate and cooperate in the future.

Even if children aren’t involved, McDonald still recommends non-adversarial divorce instead of a traditional divorce.

“It helps to preserve dignity,” she said. One of the biggest disputes when ending a marriage is over the children, the other being property. McDonald believes non-adversarial divorce can help to alleviate tensions about the division of property, as well.

One type of non-adversarial divorce is collaborative divorce. Both parties hire their own attorney, but they work together to settle out-of-court.

The other type is known as divorce mediation. Sometimes a judge can order a family to work with a neutral mediator after going through family court.

In McDonald’s practice, she too acts as a mediator, but the difference from a court-ordered one is not only is it voluntary, but, more importantly, she tries to work with the family from the start. Mediation is especially helpful when the two parties are having trouble agreeing on the terms of the divorce.

The job of the mediator is to help the two parties understand the law and to aid in the communication process. This is done while focusing on the future and not dwelling on past mistakes. The two parties are encouraged to express their wants and needs, with the final goal being the creation of a settlement both are happy with.

With this form, all discussions are kept private, except for the final agreement. Although both parties may hire an attorney to look over the settlement to make sure it is fair and nothing has been forgotten, the amount of time spent with separate attorneys is greatly decreased from a traditional divorce. Thus the total cost is reduced drastically.

The main benefits of non-adversarial divorce, however, are through cooperation of the two parents, the family is put first, resentment is lessened and communication is strengthened for the future.

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