Collaborate or Mediate Your Divorce?

The Benefits of Mediating or Arbitrating Your Family Law CaseWhen considering friendlier alternatives to divorce litigation, you should understand the differences and similarities of the options available to you. Specifically, mediation and collaboration are two popular forms of alternative dispute resolution that might sound similar in theory but have different practical implications. You should choose according to a style that most caters to your relationship with your spouse and/or your lawyers.

A divorce mediator might be a lawyer, finance professional, or social worker. They are trained in all aspects of divorce mediation: economical, legal, and psychological. Mediators who are certified have gone through minimum hourly requirements for training in dispute resolution, as well as divorce proceedings and issues. Mediators are trained to be neutral third parties to a mediation session. They do not represent either party, and cannot offer legal advice to any party; although the parties may retain counsel on their own to assist them in the process, if they wish. At the end of mediation, the mediator will draft the terms of settlement for both parties to review and ultimately sign. If the mediation process breaks down at any point, then the parties are not bound by the mediation terms prior to signing the agreement, and may choose to litigate with their attorneys.

Training requirements for a collaborative divorce lawyer are similar to that of a mediator. They will be trained for a minimum number of hours in collaboration law, client-centered facilitative conflict resolution, and collaboration communication skills. However, the structure of a collaborative divorce significantly differs from that of mediation. Collaborative divorce involves the parties and their respectively retained collaboration lawyers, along with the professionals who form part of the collaboration team (such as appraisers, accountants, and mental health professionals). The lawyers are not neutral parties; they represent their clients’ interests during the collaboration process. Even though the lawyers will have different objectives for their clients, they will collaborate as a team to reach an agreement which satisfies both their clients. Another structural difference is that parties to a collaborative divorce will sign “Participation Agreements” which lay down the ground rules of the process. Typically, these will include confidentiality agreements, agreements not to litigate, and general enforcement clauses. On the one hand, these agreements provide financial incentives for the parties to work towards a collaborative divorce and discourage litigation. On the other hand, it does create a binding obligation for the parties to retain new legal counsel from new firms in the event that they forgo collaboration for litigation and in general, the collaborative divorce process can be more expensive than by way of divorce mediators.

Both collaborative divorce and mediation require honest, voluntary, free exchange of information and negotiation. Although the collaborative lawyers and the mediator play different roles in the proceedings, they both strive to achieve a quick, cost-efficient, and amicable divorce. Going through either of the alternatives to divorce litigation is preferable for divorcing couples who are willing to cooperate and to achieve a fair result.

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