Dec 11 2007
MEDIATION OR COLLABORATIVE LAW—QUESTIONS DIVORCING COUPLES ASK
What’s the difference between mediation and collaborative law and which would be better for me? This is one of the first and most important questions I get from a wife or husband thinking about how to divorce without hostility and court battles.
As a former litigator for almost 30 years, I have strong views on this topic. I feel that there are so many advantages to friendly divorces that mediation or collaborative law is a “no brainer” for the vast majority of couples. For me, it’s deeply satisfying and life-giving to tell prospective clients that I have put away my weapons of war and limit my practice to helping people decide how to divide their property, meet their future budgets, and (in most cases) support their children financially and emotionally.
Back to the question, there are four choices available to people who value peaceful negotiated ends to marriage as opposed to courtroom litigation usually ending in settlement just before trial. I “slice and dice” these choices in ascending order from no support to lots of support.
“DO IT YOURSELF” OPTION. The first is a “do it yourself” option that works for very few people in my experience. Couples can download the court forms from the internet, try to divide their assets and liabilities and agree on spousal and child support, fill these confusing forms correctly, and take them to one of the Commissioners who just might sign off on your divorce. I see some of these couples in mediation 2-3 years later when mom or dad want changes to the parenting plan.
“LAWYER PREPARES PAPERS” OPTION. Hiring a lawyer to prepare the papers assumes that the divorcing couple have already agreed on a property settlement and parenting plan or, more commonly, one spouse merely dictates the terms and the other spouse agrees. The lawyer represents the dictating spouse and the other spouse acknowledges that the lawyer does not represent him/her. This works best in short term marriages with no real assets and either no kids or an absentee parent. The passive spouse (usually the husband) is motivated to cooperate in order to end the marriage quickly. If everything works smoothly, this option can cost $1000 or less.
THE “MEDIATION” OPTION. Divorcing couples opting for the mediation model typically do not feel they need lawyers by their side as they negotiate their divorce collaboratively. The mediator’s job is to be totally impartial and help the couple address the important issues of property and debt division, spousal maintenance, and how the children will be supported and raised after the divorce. At the end of the process, the mediator prepares a Memorandum of Understanding that recites the spouses’ agreements on all these issues. During the mediation process, the husband and wife are encouraged to consult with lawyer coaches regarding “legal rights” if that helps them negotiate a settlement that works for each of them over the long run. People with multi-million dollar assets on down opt for mediation. Lawyers typically are not present during the mediation sessions. The key is that the couple each have power to negotiate a fair settlement with the help of the mediator. A good mediator makes sure that each party has power and feels heard around the mediation table. Depending on how long it takes to negotiate the terms of the divorce, mediation fees are typically in the $4000 to $6000 range plus the cost of lawyer-coaches who may also help the couple file the final divorce documents.
THE “COLLABORATIVE LAW” OPTION. This is the “Cadillac” of the peaceful divorce options and is especially useful when the wife (or husband) feels unable to negotiate successful outcomes . In the collaborative model, each spouse hires a lawyer with special training and commitment to resolving divorces without fighting in court. The lawyers and the spouses agree to resolve the property settlement, spousal maintenance, and parenting plan amicably. The lawyers assemble a team usually including a certified financial divorce analyst and mental health therapist to work with the couple on communication skills. Other professionals may be retained to provide career counseling and other services. The objective is to provide a safe container for the couple to discuss and come to agreement on the final settlement. The lawyers then prepare the final separation agreement and court papers. If husband or wife decides to “go to court,” the lawyers and other professionals must resign and new counsel must be hired. The cost of support by two lawyers plus the other team professionals can range from $15,000 to $25,000.
Couples choosing the mediation and collaborative law option report a high level of satisfaction with the process. As I tell my mediation and collaborative law clients, my goal is a durable agreement that is fundamentally fair to both husband and wife. You might not get everything that you want, but the negotiated outcome allows each spouse to move on with his or her life.