Collaborative Divorce vs Mediation

How to keep the cost down and make it work

Increasingly, couples are looking to collaborative law as a more positive way to approach divorce. In a collaborative divorce, the spouses and their attorneys negotiate a divorce settlement without going to court. The focus is on resolving issues through cooperation.

If you can’t stand to be in the same room as your soon-to-be ex-spouse, a collaborative divorce probably isn’t for you. But if you can discuss issues with respect, you may find a collaborative divorce is a faster, cheaper and more satisfying way to end your marriage than battling it out in a divorce court.

To save (BIG MONEY), by using a collaborative divorce attorney and not having to choose an adversarial style attorney. Think outside the box. Why not combine two processes into one?

Collaborative Divorce Attorney and Mediation using a Mediator.

(Two Processes, One Solution)

It is like looking at an Oreo Cookie. The two attorneys are the cookie and the icing (filling) is the mediator. Both attorneys come into the process with the mediator. When a mediator begins, the two collaborative attorneys compose the mediating/collaborative divorce agreement process by submitting the Right to Mediate/Collaborate Agreement into a formal document. Then the mediator takes control of the meeting as both parties and their attorneys are in the same room, talking about issues on the property settlement agreement. This process cuts down on the back and forth efforts between the attorneys where normally one lawyer talks to his/her client and then they send a letter to the other attorney. Then that attorney, in turn talks to his/her client. Both attorneys are silenced through out the mediation phase, however once a solution has been resolved the attorneys and all other parties are in the room together at the table, hashing out what’s going to go into that agreement. The agreement is drafted, reviewed again at the table, signed off on and the divorce package can then be sent to the court and it’s all done!!!! So this is a solution where you can actually combine divorce mediation and collaborative divorce. The attorneys only come in at the end on each issue. They work collaboratively and it takes less time, thus the couple will incur much less attorney’s fees and have the confidence of being represented by council. Since an attorney can not be a mediator (they need to be either a mediator or attorney, they can’t be both) this is a perfect solution for fast less expensive closer for your divorce.

Advantages of Collaborative Law

In a traditional divorce, a judge makes the decisions and controls the proceedings. A big advantage of a collaborative divorce is that the spouses and their lawyers control the decisions and proceedings.

Collaborative divorce law is also:

– Generally less costly than litigation
– More private than filing papers and making arguments in court
– Less stressful, as it generates much less fear and anxiety than court proceedings
– Less time-consuming, as you can usually reach agreement and finalize the legal proceeding within a short time.

The Participation Agreement

The participation agreement is a key feature of the collaborative divorce. This agreement is signed by both spouses and their lawyers. It typically requires everyone to agree that:

  • – All efforts will be made to negotiate a divorce agreement without going to court
  • – Each party will share information freely and work to reach agreement
  • – When experts come into the negotiation, all parties will agree upon the neutral experts who are hired
  • – If litigation is necessary, the collaborative attorneys will be replaced by traditional divorce attorneys
  • – All parties will show respect to one another. No put downs or no blame

All parties agree to not spend any money that is outside the family budget without the agreement of the other party. No buying the boat you always wanted or spending money on a long needed vacation using your 401 to pay for it.

The Collaborative Process

Steps in the collaborative process include:

Full disclosure: A first step is to disclose your assets and income. You should voluntarily share this information and verify it with documentation and tax returns.

Four way conferences: You, your spouse, and your lawyers (and other neutral professionals) meet to discuss the issues and seek ways to arrive at agreement.

Resolve issues: You will decide issues like the division of property and debts, child custody and support, and spousal maintenance or alimony.

Draft an agreement: Your lawyers will draft legal documents that detail your agreements. These legally binding documents are then submitted to the court for approval without you having to go through a long court hearing.

What Happens If Settlement Can’t Be Reached?

The collaborative process gives many couples the structure and resources they need to privately settle their divorces. Many find it reinforces good communication skills that allow them to resolve issues that arise even after the divorce, like those related to child support, education and visitation.

Sometimes though, negotiations break down in the collaborative process and a settlement can’t be reached. When that happens, the collaborative lawyers withdraw from the case and each party hires a new divorce attorney to tackle the issues in court.

Below on the left is an example of a lawyer who uses litigation language as the means to the end. On the right is the same lawyer who uses Collaborative Language.

You are entitled to ___________ What are your hopes & concerns?
Spousal Support Reallocation of resources for the family
Divorce Petition Transition Document
Calls you “my client” Calls you by your name
I will protect you I will make sure that you have all of the information necessary to enable you to make good choices for your family.
You should ___________ What would it look like if _________
I will provide you with solutions We will brainstorm together as a team.
I know what you want or need. Let’s make an assessment of what will position you for success.
Child custody\visitation Co-Parenting Plan
Child Support Needs and ability
I can get you. You are supported in this process by your Divorce Coach, Neutral Financial and me, so that you’re emotional, financial and legal needs will be met.
The law says ____________ The law is one option, and the law limits you from assessing other options that may be far better suited to your achieving success as you have defined it for yourself and for your family.
My legal advice is __________ Let me give you some legal information.
I know that under the law _____ The law is uncertain, and what a judge will do is difficult to predict as legal professionals can and do differ.
I am a Divorce Lawyer I am a Peacemaker
I am in charge of…… We work as a team of Collaborative Professionals
You will end up with ___________ I will position you to achieve success as you have defined it for yourself and for your family
Ground Rules Foundations For Success

Collaborative Divorce vs Mediation

Collaborative divorce is based upon the same general principles as mediation in that it is solution oriented and non-adversarial. As in mediation, the couple maintains control of the path the divorce will take and decisions are made outside of the court system. The main difference between mediation and collaborative divorce is that in collaborative divorce, the parties are represented by attorneys. In addition, the parties work with divorce coaches, who are mental health professionals; a financial specialist, who is trained in divorce financial management; and, when there are children of the marriage, a child specialist.

It is not surprising that a collaborative divorce while less expensive than an adversarial divorce, is more expensive than a mediated divorce. There are five or six professionals involved in collaborative divorce, as compared with one mediator or mediation team, and the collaborative divorce process is more complex and time-consuming.

So why would a couple considering mediation choose collaborative divorce instead? The answer is that they generally would not. A couple that can mediate would not generally choose collaborative divorce. It is the couple who cannot mediate, but does not want an adversarial divorce, who would choose collaborative divorce. Collaborative divorce is really a second alternative to an adversarial divorce, not an alternative to mediation. The two processes are not competing for the same clients.

The real difference between the two divorce methods is whether each party is represented by an attorney or advocates on his or her own behalf. Collaborative divorce is an excellent alternative for the person who is not comfortable divorcing without being represented by counsel. Sometimes a person is truly not capable of being his own advocate because of his experience or because an imbalance of power exists between the husband and wife. A party who is impaired by substance abuse or has been battered by a spouse will often have difficulty being a successful advocate. In other cases, a person may simply not be comfortable with the idea of making the life altering decisions that must be made in divorce without the advice of counsel every step of the way. There is no right answer for everyone. It is a personal decision. Fortunately, there are two viable alternatives to an adversarial divorce: collaborative divorce for those who wish to be represented by an attorney, and mediation for those who do not.

That is not to say that there are not meaningful differences between mediation and collaborative divorce that a couple might consider. The contributions of the financial specialist, the child specialist, and the divorce coaches are real and meaningful. At the end of the day, a couple that chooses collaborative divorce, rather than mediation, might make better informed decisions regarding their finances and their children. One might argue, however, that the same might be accomplished less expensively through a mediated divorce integrating the services of financial advisors, mental health professionals, and child specialists on an as-needed basis.