- Steve Rakowski
Different approaches to divorce: Mediation and collaboration
Mediation and Collaborative Process are two alternatives worth considering as couples decide how to approach their divorce.
When it comes to legal procedures, most people only know what they see on TV. There’s an opening scene, where all the parties are identified and the disputes are explained. Perhaps there will be an intervening scene, where a police detective is doing some investigation. But invariably, the next scene is when everyone is in the courtroom and the lawyers are yelling at the witnesses trying to get them to “confess.”
In reality, trials, and getting ready for them, are a lot more complicated than what you see on TV. Motions are typically filed to clearly define the parties and issues. Then, discovery follows, during which each party asks the other questions, the parties exchange documents, and witnesses are deposed. After discovery is completed the judge, if s/he’s any good, tries to help the lawyers settle the case by conducting pretrial(s). If settlement is unsuccessful, the trial starts. Depending on the complexity and number of issues, it could take months.
Statistics studies indicate that in divorce approximately 96 percent of cases settle. The question is, where along the continuum of case life does the settlement occur? The two parties may have incurred $1,000 or $100,000 in legal fees before they are each ready to consider compromise and reprioritize their goals.
To avoid the uncertainty of the litigation process and maintain greater control over time and cost associated with the divorce experience, couples are increasingly turning to nontraditional or “alternative” dispute resolution processes. Among them are primarily mediation and collaboration.
Mediation is an informal process in which the spouses meet with an impartial and neutral individual who helps facilitate communication. The mediator’s role is to guide the parties toward their own resolution. Through joint sessions and breakout sessions with spouses, the mediator helps both sides define the issues clearly, understand each other’s position, and move closer to resolution.
Most often, mediations start with a joint session used to set the ground rules and an agenda. The joint session also helps define the issues and determines the parties’ positions. If joint sessions become tense, the mediator may separate the spouses and carry messages — offers, counter offers, questions, demands, and proposals — between both sides to help the spouses move closer to resolution.
The mediator has no authority to decide the settlement or even compel the parties to settle. Mediation is nonbinding until parties agree on a resolution. If the matter does not settle, the claimant has preserved the right to pursue litigation or arbitration.
In Collaborative Process, spouses are typically each represented by an attorney who is a trained mediator and certified as a collaborative professional. As in mediation, there is an initial meeting to elicit each party’s goals and concerns and approve a set of rules in the form of a Participation Agreement.
Collaboration is a multidisciplinary process. That means the spouses can agree to hire neutrals to assist in the resolution of disputed issues. A child specialist can make recommendations on allocation of parental responsibilities. A financial neutral can help the parties identify, value, and allocate assets. And, a coach can help the parties address emotional conflict that may impair their ability to function in the meeting environment.
The difference between mediation and collaboration is that attorneys are present at collaborative meetings and typically do not attend mediation sessions.
Both processes result in decisions on terms that may be more creative and tailored to the particular needs of the family than a judge may be able to order. Once final terms are set, they must be crafted into final settlement agreements and approved by a court before they can become final and enforceable.
If you have questions about which divorce process is best for your family, please call us for a consultation. We may be able to save you thousands of dollars in legal fees and a great deal of anxiety.