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Q&A Topic: Mediation, Collaborative Law, and Litigation: The Different Ways of Divorcing

Jacqueline Newman, Berkman Bottger Newman & Rodd, LLP
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Q: What distinguishes your firm from other firms that specialize in handling high net worth divorces?

A: BBNR does not believe in the “one size fits all” approach to divorce and recognizes that each client may have different needs, strengths, and weaknesses, and not every process will work for them. Therefore, we are one of the few matrimonial law firms in New York offering clients three different process choices to obtain a divorce: through mediation, collaborative law or litigation. Our firm feels that it is important for people to have options – even when getting divorced. For example, if spouses are on agreeable terms, there is not a huge power imbalance between them, and they want to reduce costs and time - as most people would - then mediation can be the right way to proceed. Mediation involves the parties working directly with a neutral mediator, with lawyers assisting from the sidelines and not in the room during the sessions. Some clients want to have their attorney in the room during negotiations, so then a collaborative divorce may be a better fit. If mediation and collaborative law are not the right process choices for you, BBNR has many attorneys who litigate and are excellent in the courtroom. However, just because you do not want to proceed down the mediation or collaborative law paths, it does not mean you are automatically going to wind up in Court. Most of my clients end up with negotiated settlements, even if they do not choose to divorce via mediation or collaborative law. I am proud that our firm offers the full spectrum of matrimonial services.

Our firm is also one of the largest divorce law firms in New York City and Westchester that practices exclusively matrimonial and family law. Some clients want a “shark” while others want a lawyer with a more conciliatory approach. Some clients might want a senior partner, others an associate, or a partner-associate team. We walk our clients through the process of selecting the divorce method that’s right for them and also the type of lawyer that they feel will best serve them.


Q: Most people have some knowledge about the mediation process and about getting a divorce through litigation, but what’s collaborative law?

A: During the collaborative process, both spouses have their own attorneys in the room, so it differs from most mediation sessions when attorneys typically play a more outside role. In collaborative law we usually utilize the interdisciplinary model, which includes a team of experts including divorce coaches (therapists trained in the collaborative model), neutral financial experts and child specialists, if applicable. I always tell clients that I am the most expensive player on the collaborative team, so why would you not want to work with these experts? The kicker to collaborative law is that the attorneys and clients all sign a Participation Agreement, which states that neither of the parties will go to Court while engaging in the collaborative process. So, if the process breaks down - and it is a voluntary process so either spouse can say they do not want to continue - then you cannot use the same attorneys in litigation and need to start all over with new counsel. There is a strong focus on settlement and preserving the relationship between the parties as much as possible. The collaborative law model is an excellent alternative to mediation or litigation.


Q: What are the first questions I should ask myself in the beginning of the divorce process?

A: One of the very first questions I ask any client who walks into my office for an initial consultation is “Are you sure you want to get divorced?” If he/she hesitates for even a second, I suggest marriage counseling as an option before considering divorce. Why would I say this to a potentially paying client? Because divorce is emotionally and financially exhausting. You need to be sure this is what you want to do before you go down that path. It is not an easy thing to come back from and you want to be sure you have done whatever you can to save the marriage before taking this life altering step. While life is full of regrets (and when you are sitting in my office the idea of your marriage to your spouse might be one of them), you do not want to ever feel any remorse about the decision to divorce. So, the first decision you need to make in the beginning of the divorce process is whether you are 100% sure you want to get divorced.

If the answer is affirmative, then the next question you need to answer is which process choice for divorce you believe would best serve you and your soon-to-be-ex spouse. Whether it is mediation, collaborative law or negotiation/litigation, you need to decide where you want to begin. The next step is to hire an attorney that best fits your needs. 


Q: What should a person consider when hiring a divorce attorney?

A: Selecting the right divorce lawyer is just as important as choosing the right process. In the midst of stress and emotional strain, you may feel like simply signing up with the first attorney you get from the Yellow Pages just to get it over with. But do not rush this process. I generally recommend that you want to choose a specialist in matrimonial law. A specialist in matrimonial law knows the laws pertaining to divorce and is familiar with the psychological aspects of divorce. Once you find a reputable attorney who specializes in divorce, the most important thing is to meet with the person and his or her team to decide if you are comfortable. You can hire the greatest attorneys in the world, but if you are not comfortable enough to tell them everything they need to know, then you cannot give them the tools they need to be as magical as their reputation depicts.

You need to feel secure enough to say anything to your attorney without feeling judged. You need to feel free to communicate openly with your attorney and not withhold information because you are afraid of offending him or her. If you feel intimidated or judged after meeting with an attorney, do not choose that person. No matter how good the attorney’s reputation is, if you cannot be fully forthcoming with that attorney, you will not be able to help that person do his or her job. 


Q: You are often called upon to be an expert commentator for television, radio and print publications—and you are an Amazon best-selling author with two books written, respectively, for women and men, Soon-To-Be-Ex: A Guide to Your Perfect Divorce and Relaunch and Soon-to-Be-Ex for Men: Preserving Wealth, Fatherhood, and Sanity during Divorce. What are the basic differences in the advice you give to men and women?

A: The gender ratio for my clients is fairly evenly split, and over the years, this has let me observe directly how different divorce can be for men and women. Simply put, there are large differences in the ways men and women approach divorce, and that is why I decided to write two separate books. Yes, both of the books are practical guides that cover the emotional elements and the procedural aspects of divorce. But the books also reflect the very real differences in priorities that I have seen between men and women. For example, even though society is changing, men are still usually the primary breadwinners and women are still usually the main caretakers of the children. This means that men may be very concerned about money, while recognizing they have great fears about losing their children in a custody fight. Likewise, when representing a woman who may not have been involved in the finances during the marriage, I focus on educating them about financial issues and try to prepare them for the parenting changes that will occur and the emotional impact of that.

Both genders have worries that need to be addressed and I feel that I have a rare vantage point that can be utilized to relate to each party’s concerns as I have advocated and defended against both. I can play the game for either team and it puts me in the unique position of being able to understand and strategize in a way that most people would not be able to.  


About Berkman Bottger Newman & Rodd, LLP

Berkman Bottger Newman & Rodd, LLP is a boutique New York divorce law firm with offices in midtown Manhattan, Westchester and in New Jersey. We concentrate our practice exclusively in the areas of family and divorce law, and serve clients in New York City, Westchester, and other nearby counties such as Nassau, Suffolk and Rockland. Recognized among divorce law firms in New York, we are one of the only Manhattan/Westchester divorce law firms offering all three options for divorce: litigation, collaborative law and mediation.

Our New York family law attorneys emphasize comprehensive, compassionate and cutting-edge service. We have significant experience handling high net worth cases, and are skilled at preparing effective prenuptial and postnuptial agreements. We offer expertise in professional trial advocacy, negotiation, collaborative law, mediation, prenuptial and postnuptial agreements, child custody and support, spousal maintenance, property division, and modifications and enforcement.


Jacqueline Newman
Managing Partner
Berkman Bottger Newman & Rodd, LLP

New York City
521 Fifth Avenue, 31st Floor
New York, NY 10175
Phone: 212.867.9123
Fax: 212.983.8526

Two Overhill Road
Scarsdale, NY 10583
Phone: 914.308.3435

21 Main Street, Suite 250
Hackensack, NJ 07601
Phone: 201.488.1135