Family Law Matters Blog
When starting the divorce process, understanding the difference between the available process choices can help create the healthiest environment for the process to proceed. In addition to a traditional adversarial courtroom process, mediation and collaborative divorce each provide a process that focuses less on confrontation and more on an optimal result for both parties. While both mediation and collaborative divorce are non-adversarial, they each have key differences that should be considered when choosing the right process for your divorce.
Mediation is a voluntary process where a neutral third party (the mediator) will be selected by the parties to facilitate communication and help the parties reach a mutually acceptable resolution. The mediator may be an attorney or another specially trained professional. Although the mediator may be an attorney, he/she will not provide legal advice to either party. He or she will use his or her analytical and problem solving skills to work productively on the various layers of the issues. The role of the mediator is to assist the parties in engaging in positive dialogue and help them reach a workable solution. Before settlement negotiations begin, it is the mediator’s job to ensure that both parties have all of the information they need to make informed decisions. Once a resolution is reached, a formal settlement agreement is written. This written agreement serves as the binding contract between the parties. While parties are not required to retain lawyers for the mediation process, it is advisable to consult an attorney before entering into any binding agreement.
In collaborative divorce, attorneys specially trained in the collaborative law process represent the parties. The negotiations take place between the parties and their respective attorneys directly, outside of the court system, often with other professionals involved. The other professionals may vary based on the specific circumstances, but may include neutral financial professionals, child/family specialists, etc. The goal in collaborative divorce is to find the most optimal solution for each party and to minimize the emotional impact of the divorce. This process, like mediation, is based on informed, interest-based decision-making. The parties and their attorneys make a pledge to commit to settlement and not go to court. In the event a settlement is not reached through the collaborative process and the parties do decide to go to court, the attorneys used in the collaborative process will be disqualified from continued representation. That requirement encourages a buy in from the parties and the attorneys to work on settlement from the beginning of the case. In my opinion, the requirement that attorneys must withdraw supports working on settlement from the beginning of the case rather than at some point down the road.
Both mediation and collaborative divorce provide a less adversarial approach to settlement than a traditional courtroom setting. In both processes, there is a benefit to the parties making their own decisions rather than have a third party make decisions for them. The differences between each process may be subtle, and the choice boils down to a personal preference as to having attorneys actively participate in the process from the beginning. My website provides further information on both mediation and the collaborative divorce processes.