Divorce Processes: Litigation, Mediation and Collaborative Divorce
If you have been thinking about divorce, or you are somewhere in the process of divorce already, the beginning of a new year is a great time to move things forward. Maybe you are wondering about mediation and want to know if it is a good option for you, but you are still not clear on how exactly it differs from other divorce processes. Here is a basic review to get you started:
Litigation, Mediation and Collaborative Law
All divorce processes eventually lead to the same place: a judgment of divorce. The choice of method, however, will result in many differences along the way. Divorce mediation and collaborative divorce usually culminate in a marital settlement agreement (MSA) that is incorporated into the final judgment. In a litigated divorce without an MSA, the case will end with final orders from the court.
So, what are the main differences between divorce processes? Let’s take a closer look.
Divorcing couples in New Jersey can pursue either a contested or an uncontested divorce. In contested cases, much of the communication and negotiation occurs between the attorneys rather than the parties themselves. There are generally more court filings and more court appearances. Fortunately, it is quite rare these days for even a contested case to go all the way to trial without settlement. The more time a divorcing couple spends in court, however, the more they will be subject to the rules, procedures and costs involved. Any decisions the parties cannot make on their own will be left to a judge.
In uncontested cases, the parties are committed to working out all their issues and entering into an MSA. Divorce mediation and collaborative divorce are methods of assisting settlement in uncontested divorce.
In divorce mediation, the parties choose a neutral third-party to act as a mediator. The mediator helps the separating spouses work through their issues and negotiate a settlement. Divorcing couples with few disputes may need only one or two mediation sessions. Others may need several. Each party should have a consulting attorney, but attorneys attend sessions only rarely. Other professionals, such as child custody or financial experts, may participate as necessary. Once the parties have resolved all issues, their attorneys will finalize an MSA. If the parties are not able to resolve everything, they can take one or more issues to court.
In collaborative divorce, the parties also work to reach their own settlement agreement. Each spouse hires a collaborative attorney who, in order to maximize the odds of settlement, agrees not to go to court. The parties and their attorneys then engage in four-way negotiations. Experts like child specialists, financial specialists and divorce coaches are often included as part of the divorce “team” early in the case. If the process is successful, it results in an MSA. If it is not successful, the parties hire new attorneys to take the case to court.
Pros and Cons of Each Process
No one method is best for everyone. There are major differences across several aspects, however. These include cost, time involved, privacy, amount of control retained by the parties, and degree of compliance with an MSA or final orders.
The least expensive way to get a divorce is to work out all disputes on your own. This kind of happy result is unusual, but there are divorcing couples who manage to do it, especially after a relatively brief marriage with no children, few assets, and similar incomes. In the more common case where a couple needs help working out one or more issues, mediation tends to be the least expensive option. The parties stay out of court, and attorney participation is generally minimal. More complex cases may require more attorney involvement, which can increase costs, as can the participation of child custody or financial experts. Even in the simplest case, it is important to have attorneys review the MSA.
Collaborative divorce tends to be more expensive than mediation because the basic format consists of four-way negotiation sessions. A collaborative team also often includes other professionals, such as parenting experts, financial experts and divorce coaches.
By far the most expensive option is a litigated divorce where the parties have many unresolvable disagreements. The heavy use of attorneys and the necessity of more court filings and court appearances will raise costs quickly. Parties are also more likely to hire separate experts, whereas parties in mediation or collaborative divorce often use joint experts.
Mediation also tends to be the fastest way to resolve a case. Collaborative divorce can take a little longer, particularly in a more complex case. A case that goes through the traditional litigation process in court, however, will generally take the longest. Court timelines can be unpredictable and the need for discovery and court hearings can result in long delays.
Divorce mediation and collaborative divorce are both private processes where the parties and the professionals involved agree to confidentiality provisions. Many aspects of litigation, on the other hand, become part of the public record, compromising the privacy of the participants.
Both mediation and collaborative divorce allow participants a high degree of control, both over the process and over the available solutions. Court proceedings, on the other hand, are quite rigid, and court-ordered solutions tend to be fairly cookie-cutter. Judges simply do not have the time or the resources to get to know the parties in depth and tailor results to their specific circumstances.
Because mediation and collaboration allow so much flexibility and control, participants tend to be more satisfied with results and more likely to comply with agreements. This can be a real boon when it comes to avoiding post-divorce litigation, with its attendant expenses and potential emotional toll.
Suitability for all Participants
While divorce mediation and collaborative divorce are appropriate for most couples, a few caveats apply. The collaborative process is a bit more complex than mediation and may therefore be unnecessary in very simple divorces. Both mediation and collaborative divorce can also be inappropriate in cases of domestic violence, or in other situations where there is a large power differential between the spouses. The inclusion of attorneys in collaborative sessions builds in some protection. Parties in mediation can add protection by having attorneys participate more frequently and by imposing additional safeguards.
Whether you are ready to jump into mediation or need more information to help you decide which process is best for you, the mediators at the Weinberger Mediation Center are ready to help. Contact us for an initial consultation.