What is the Collaborative Divorce?
Mediation and collaborative law are both alternative dispute resolution (ADR) processes in which the participants in a divorce agree to keep their conflict out of court and approach negotiation in a non-adversarial spirit; however, the two processes differ greatly. The following is a brief description of the collaborative divorce process in New Jersey, followed by some highlights of the similarities and differences between collaborative divorce and divorce mediation.
Collaborative Divorce Process
The collaborative divorce process encourages divorcing spouses to see themselves as playing on the same team, with the common goal of maximizing results for both parties. At the beginning of the process, each spouse hires a separate attorney with training in collaborative law. Both spouses and both attorneys then sign an agreement to keep the divorce case out of court. The lawyers agree to limit their representation to negotiations during the collaborative process and to withdraw from the case if one or both spouses decide to go to court on any issue.
If professional opinions are necessary in the case, the parties will generally agree to use joint experts. The experts limit their services to providing opinions in the collaborative setting and agree not to serve as experts in any future litigation between the couple. Experts often include financial advisors and child custody specialists. In most cases, each spouse will also hire a separate “divorce coach,” who is usually a marriage and family therapist. The attorneys and the parties engage in a series of four way meetings in an effort to settle all issues in the case.
Similarities between Mediation and Collaborative Divorce
Both mediation and collaborative law focus on expanding available solutions through “interest based” negotiation. This means that parties try to avoid taking rigid positions and look instead at the real interests beneath positions, working together to foster trust and increase the potential benefits for both sides. The distinction between an “interest” and a “position” is best conveyed by example: A spouse who expresses the desire to be able to afford a comfortable home near both work and a child’s school is expressing an interest. A spouse who states that there is only one specific house that could possibly be an acceptable place to live is expressing a rigid position. Rather than looking at the results of a divorce as a pie that can only be divided into a limited number of slices based on rigid positions, interest based negotiation seeks ways of expanding the pie.
Other similarities between the two processes are that both allow parties to negotiate their own results rather than leaving decisions in the hands of an arbitrator or a judge; both free participants from court-imposed timelines; and both encourage participants to share information in a way that is easy to understand and does not require use of expensive and time-consuming discovery rules.
Differences between Mediation and Collaborative Divorce
One of the major differences between the two alternative dispute processes is that collaborative law requires the intense participation of attorneys throughout the entire case. In mediation, individuals rely on their agreed upon mediator (who may or may not have family law or legal background) and hire their own attorneys who may participate in some sessions, but those personal attorneys rarely participate in every session. It is more common for the spouses to simply consult with their own attorneys occasionally.
Another major difference is that collaborative divorce does not make use of a neutral intermediary. In mediation, the mediator acts as a neutral facilitator. One of the mediator’s most important functions is to ensure that each spouse has an equal chance to present all interests and concerns. The mediator’s presence introduces an element of calm into the process.
Finally, both collaborative law and mediation require parties to sign agreements regarding procedural rules, but the rules surrounding a collaborative law proceeding are more restrictive. Parties in mediation agree not to file any new papers in court without first informing the other party and the mediator. If one party does decide that a court appearance is necessary, however, the party’s consulting attorney can handle the appearance. Parties in collaborative divorce, on the other hand, sign an agreement stating that if the process is unsuccessful they must start all over with new attorneys. Under no circumstances can the same lawyer represent a participant at a collaborative divorce proceeding and at a court hearing or trial. This means that unless the parties succeed in reaching agreement on every issue, they must hire new attorneys who will need to spend time familiarizing themselves with the facts of the case.
Proponents of collaborative law believe that attorneys focus more on settlement when freed of concerns over litigation strategy, and that parties themselves work harder to resolve issues when they know they will have to start over and spend more money if they fail. The major drawback is that not all issues can be resolved out of court, so there may be a greater risk of spending additional funds. Even when the parties are successful in resolving all issues in a collaborative divorce procedure, it may be more expensive than mediation. Full participation of two attorneys generally costs more than full participation of one mediator with just occasional attorney consultation.
If you have additional questions about whether mediation or collaborative law will be a better choice in your case, contact us for more information or advice.
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