As an attorney, I get asked the question as to why should someone consider collaborative divorce over mediation, arbitration or litigation. Each client has a different case and collaborative may not work for all of them, but it can be the best choice for many. Collaborative divorce is a process where the parties agree not to litigate (i.e. go to court). Why is that important? Well, it means the parties have greater control over the outcome of their divorce.
In litigation, parties are relying on someone who does not know them to make monumental decisions about their lives. Judges decide support, custody, parenting time, distribution of assets, where the children will live, etc. When Judges make these decisions for parties there is generally a sense of dissatisfaction in the results.
Alternatively, in a collaborative case, the parties make the major decisions. Spouses can come to an agreement of what arrangement is in the best interest of their family. They also feel better about the outcome because they have had a say in what happens. Parties in litigated cases often return to Court to resolve disputes. In collaborative divorces, parties are able to resolve their differences without repeatedly relying on the Court to make a decision.
In mediation, parties also have greater control in their outcomes. The difference with mediation and collaborative divorce is the support system that the latter provides. In the typical mediated divorce, the parties do not have attorneys with them in the sessions. Because they do not have counsel there, the parties may hesitate in making decisions or conversely may make decisions they later regret. Mediation can be successful for some parties, but is not the right fit for everyone. In some of the cases where mediation is not right, collaboration may be the better choice.
Collaborative divorces require each party to have a trained attorney to assist them through the process. Coaches are utilized to help parties deal with the emotional issues of a divorce. The coach may also work with the parties to create parenting plans. The parties may also utilize the services of financial neutrals to develop spending plans and valuation of assets, as well as financial advisors to help them plan for their respective futures post-divorce. In a collaborative divorce, the different professionals act as team to guide the parties into separating without destroying the family.
Some of the advantages of collaborative divorce are:
- Collaborative divorces can go as quickly or slowly as the parties need.
- Parties have a support system (coaches, advisors and neutrals) to assist them through the process.
- Collaborative divorces can be less expensive than a litigated divorce.
- Collaborative divorce considers the impact on children/families.
- Promotes coming to the best solutions for the family.
When a party is thinking about divorce, he or she should consult with an experienced divorce attorney to determine what is the best process for them. In New Jersey, parties may refer to the New Jersey Council of Collaborative Practice Groups or their local practice group to find an attorney who is trained in collaborative divorce and mediation to discuss all of their options to make an informed decision of which process will work for them. A trained collaborative divorce attorney can provide someone with information on all their options and if collaborative divorce is right for them.