Facing a divorce? Try Alternative Dispute Resolution

Van Hilten de Vries van Ruitenbeek Advocaten & Mediators (HVR) is a law firm specialising in family law and general practice located in The Hague with a meeting point in Amsterdam as well.

Divorce is never easy. But as it is also the beginning of a new life, it is best to focus on planning for your future.

Legal proceedings can be devastating and destructive, not only damaging relationships, but also lives. A well-handled divorce, on the other hand, is a stepping stone for a happy second life or so-called good "after-marriage".

A widespread problem

In the Netherlands, the Central Bureau of Statistics reports that more than a third of marriages break down.

Since 2000, CBS reports that there have been more than 30.000 divorces per year. This equates to more than 60.000 spouses and 30.000 young children who are affected every year.

Unmarried partners who are living together are even more likely to separate. According to estimations, this may affect another 40.000 children, making a total of more than 70.000 young children involuntarily dragged into separation proceedings each year.

A national issue

A simple estimation is that, over the last 15 years, more than 2 million people were directly involved in a divorce or split-up, including children and grandparents.

When a divorce goes wrong, often school teachers, employers, psychologists, and doctors are also involved. This implies that divorce can be considered of social interest and, more specifically, as an issue of national health.

This is a reason for the government to promote mediation, negotiation, and collaborative divorce - and even to impose it. Nowadays, according to Dutch law, parents who want to divorce are obliged to make a parenting plan first.

Alternative Dispute Resolution

Divorce proceedings in court can be a stressful and long process, however effective alternatives are also available.

Alternative Dispute Resolution, or ADR, offers a way of solving conflicts without the interference of a judge or court.

Are we saying that ADR is the magic pill that will get you through divorce painlessly? No, however it has proven to be suitable for certain divorcing spouses.

Two increasingly popular forms of ADR are mediation and collaborative divorce.

› Mediation 

Developed in the United States, mediation is the best-known and most popular form of Alternative Dispute Resolution.

Why is this? First of all, court proceedings are often expensive and do not always lead to an appropriate outcome. Even when a court order favours one of the parties outright, it often ends in a lose-lose situation as the other party can find it hard to accept the new situation, thus triggering new problems.

The most important asset of mediation is that the parties themselves find a solution together, thus increasing the commitment to, and acceptance of, the solution. Voluntary attendance and confidentiality are crucial conditions for mediation, as is a qualified (registered) mediator.

The role of the mediator

To become an effective mediator, a lot of training is needed. First of all, he or she must create a safe environment in which both parties feel free to express themselves.

The mediator has to ensure neutrality and explain the rules of the game - and maintain these rules. This is to guarantee a respectful, confidential process, in which the mediator can help contain and manage the conflict.

A suitable solution

Disputes between spouses seeking divorce often lend themselves to the mediation process as it can prevent an ugly legal stand-off. 

Labour disputes, personal injury cases, conflicts between neighbours, or landlords and tenants, and smaller-scale disputes between business partners also benefit from mediation.

Avoiding a war

The ultimate goal of mediation, especially in divorces, is to avoid war. That divorces can turn into a real war, in which the ex-spouses want to achieve total destruction of the other, is a well-known occurrence.

Most people, however, do not favour this. I remember one of the taglines from Danny DeVito’s movie "The War of the Roses", saying: "Once in a lifetime comes a motion picture that makes you feel like falling in love all over again. This is not that movie".

Very to the point, I would say.

Identifying the triggers

Communication techniques and creative problem-solving techniques are indispensable tools for a mediator. Identifying "deep pain" or "red buttons" often helps in developing the process.

Re-framing a point of view provides clarity and can reduce misunderstandings. Searching for and finding the real issues, now and in the future, helps the parties deal with an impasse.

In my experience, mediation is a suitable and effective way to deal with divorce conflicts.

› Collaborative divorce

Another form of Alternative Dispute Resolution is collaborative divorce, which has successfully been used in the States in many divorce cases and, in the last five years, also in the Netherlands.

Both parties choose their own lawyer to protect their interests. These lawyers, trained as Collaborative Divorce (CD) lawyers, act as mediators when addressing the various issues.

A coach with a background in psychology structures the process, including pointing out and offering guidance early on regarding possible problems concerning children.

Working with two lawyers and a coach

The common goal of this Team of Five is to reach the most optimal solution for both partners. In financially complex cases, an independent financial or tax advisor can be included.

If, and when, parties cannot reach an agreement, the lawyers, the coach and the financial advisor(s) have to withdraw.

Working with two lawyers and a coach sounds like an expensive solution, but in the long haul it will prove to be cheaper than any other approach, especially in more complicated divorces, as all parties work towards a common goal.

A fair and cost-effective approach

Unlike mediation which, if unsuccessful, requires the involvement of lawyers and financial advisors at a later stage, collaborative divorce includes these parties from the onset, as well as a coach.

The coach, explicitly qualified to guarantee a fair process, is indispensable and has the task to make sure issues regarding children are well managed from the beginning.

Collaborative divorce can be an efficient and dignified divorce process that does not entail long and costly court procedures.

Effective divorce options

To sum up, there are several different ways to deal with the divorce process. Alternative Dispute Resolution offers a variety of approaches, including mediation and collaborative divorce, to resolve issues out of court.

Once you understand how ADR works then you can choose the one that best fits your personal situation.
 

Edith van Ruitenbeek is lawyer/mediator and partner of HVR. For more advice on divorce:
› Contact Edith directly
› Visit the HVR website
› Schedule a free 30-minute introductory interview in The Hague or Amsterdam