Alternatives to Court in Divorce

Mediation and Collaborative Divorce

When a couple is getting divorced, there are many things to consider.  Decisions need to be made regarding custody, support, division of assets, insurance, retirement, and many other aspects of the couples’ life.  Thought should be given as to who to tell, when to tell them, and how to break the news.  There also needs to be a discussion as to HOW you wish to divorce.

It used to be that the one spouse would have a lawyer file a Complaint for Divorce and the couple would then navigate through the courts.  Many still divorce this way.  Some litigate because it makes the most sense or is the best option for them and their family.  But some litigate solely because they were not aware that there are other options.

Today, you have choices as to how you wish to divorce.  Two of the ways which provide options outside of the court, are mediation and collaborative divorce.  There are similarities and differences to both which should be weighed carefully when determining which process is right for you.

MEDIATION

Mediation is a confidential process where you and your spouse meet with a neutral person who helps to facilitate a resolution.  Mediation can have attorneys involved, but it is not required.  The mediator is not there to provide legal advice or to make decisions for you, he or she is there to help to clarify your issues, discuss options and to come up with solutions.

Because it is a process that is client-driven, meaning the spouses are the ones who make the final decisions, you and your spouse have greater control over the outcome.  This tends to lead to greater satisfaction in the outcomes.  You are also in a better position to control the costs of the process.  

Mediation is not for everyone.  If there is a history of domestic violence, it is not a case which is appropriate for mediation.  Mediation does not work if you are not comfortable confronting your spouse or speak up about what you want.  If you always agreed with everything your spouse said to just avoid an argument, you will likely not do well in mediation.

For those couples who mediation is not the right fit, there is another out-of-court option that is may work for them.

COLLABORATIVE DIVORCE

Collaborative divorce is, like mediation, a confidential process that occurs outside of court.  The difference is that each spouse has their own attorney who assists them through cooperative negotiations instead of using adversarial tactics.  Think of it as a team approach, where the team is trying to help the spouses to come to a resolution.

One of the differences from mediation is that in a collaborative divorce, we often utilize other professionals to assist with negotiations.  Divorce coaches can work with clients to address the emotional conflicts that flare up in a divorce.  The coach helps to facilitate the negotiations and may keep the conversation focused on the issues rather than letting it go off on a tangent. 

Many times, in a collaborative divorce, there is a financial neutral to assist the spouses with issues like spending plans and valuations of assets.  The financial neutral can also help clients understand the tax implications of different scenarios and help them to understand what their finances will look like post-divorce. 

While there may be more professionals involved in a collaborative divorce, the costs to the spouses may still be less than the traditional court divorce.  Because the parties are the ones making the decisions, they have a greater amount of control over the timing and costs related to their divorce.  The control also extends to the outcome as they are making the decisions, therefore there tends to be greater satisfaction in the result.

Spouses and their respective attorneys enter into a Participation Agreement which states they will not litigate.  This means both spouses are agreeing to resolve their differences outside of the court.  A key part of this agreement is that everyone understands that if it does fall apart and it ends up going to court, the professionals involved in the matter are unable to continue to represent the clients.  A spouse who is not willing to give up their lawyer if the divorce moves out of the collaborative process is probably not the right fit for collaborative divorce.

HOW TO DECIDE WHICH IS RIGHT FOR YOU

Mediation and collaborative divorce work well for those parties who are committed to work towards an outcome that will be best for them and their family. 

Parents who want to be able to co-parent after the divorce should consider one of these forms of alternative dispute resolution.  Children are given great consideration in each process and there are ways in which they can be protected from some of the negative aspects of divorce.  Both mediation and collaborative divorce provide tools to help parties to communicate with one another during and after the divorce.    

Couples who are concerned about confidentiality with regards to their divorce should also consider mediation and collaborative divorce, as both will respect their privacy and their desire not to have their dirty laundry out for public display.  If there are complicated tax issues, financial concerns or personal issues that you or your spouse do not want others to know about you will want to keep away from the courts which are typically an open forum. 

Mediation and collaborative divorce both require that you and your spouse enter into the process voluntarily and are willing to cooperate.  If either of you are unable or unwilling to be honest, open and completely forthcoming about your finances or interests, these may not be the right processes for you. 

In those cases where there is a complete mistrust of the other spouse, mediation and collaborative divorce will not likely be successful.  There needs to be a comfort level that what you are telling each other at the negotiation table is accurate and truthful.  Without that, it will be difficult for you and your spouse to come to a resolution that you can implement with confidence.

Not everyone is suited for mediation or collaborative divorce.  Like the decision to get divorce, how you divorce is important.  Before deciding, it is best to meet with a trained lawyer who is experienced with mediation, collaborative divorce and litigation.  An attorney who is experienced in all three processes can review your case with you and help you determine what may be your best option. 

You may also want to consider meeting with a coach with your spouse for a consultation about divorce process.  This way you and your spouse can speak together about how you both want to divorce.  Coaches can provide a completely neutral assessment of whether you and your spouse may be a good fit for mediation of collaborative divorce.