Thursday, September 30, 2010

Mediation Vs. Collaborative Divorce

David D. Stein, Esq.
© Liaise® Mediated Solutions, LLC 2009

Mediation

Mediation is the process where you and your spouse and a mediator enter into an agreement to mediate. You sit down and together work out the terms and conditions of your dissolution. There are no lawyers present; it is just the mediator – who is a trained professional – and the spouses coolly and calmly working things out. If particular issues arise that require an outside expert, such as valuation of a pension, or a bona fide dispute as to the value of real estate, then the mediator engages a neutral specialist to render an opinion as to the matter in dispute.

At the end of the process, a marital settlement agreement is drafted and the parties are urged to have that agreement reviewed separately by an attorney. The purpose of that review is not to present an opportunity to attack the agreement or run up unnecessary attorneys’ fees, but rather it is to make certain that the words of the agreement are an accurate reflection of the understanding in the parties’ head. Once it is independently confirmed that the agreement is accurate, it is signed and notarized. When fully executed it is attached to a judgment and presented to a judge for signature. Parties never have to appear in court and all of the “pleading” stage of the dissolution is handled through the mail.

Usually, the only professional fee that is paid is the single mediator’s hourly rate.

Collaborative Divorce
A “collaborative divorce” is a much more complicated process. Each party is represented by an attorney who is trained in a “collaborative” Process. The attorneys and their respective clients enter into a fee agreement wherein it is specified that the lawyer iIs to be restrained in their usual zeal for litigation. If the “collaborative process” is unsuccessful the attorneys will not continue in the representation of the parties should the matter proceed to litigation. Each party, in the usual course of “collaboration”, also engages the services of a “coach” and an accountant. These coaches are a specie of mental health professional that assist the parties in managing their well-being during the process.

The lawyers and their clients push and prod one another to arrive at a mutually agreeable resolution. The process is much less adversarial than traditional litigation, but it is nonetheless a form of advocacy.

“Collaborative divorce” has its benefits, , but it is much more expensive than mediation. The marital estate is paying two attorneys, two coaches and at least one financial assistant. This can easily work out to be in excess of $1000 per hour. Our experience at Liaise is that during a marital dissolution or, as we prefer to call it when there are children involved, “reorganization”, there is not enough money to go around and it is in the family’s best interest to save as much money as possible.

For divorcing couples who have nearly unlimited funds, the collaborative process can provide more of a “security blanket” when going through a difficult time. But for those couples who have to preserve as much as possible of their marital estate in order to provide for their children’s education or their own retirement, it is in their best interests to first pursue mediation.

21 comments:

  1. what is meant collaborative divorce can you explain it clearly

    Demetris Phillips
    Divorce Help solutions

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  2. Divorce mediator still feels like a new idea in some parts of the country, but it's increasingly well-known and widely accepted.

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  3. Hi there! You have such an interesting and informative page. I will be looking forward to visit your page again and for your other posts as well. Thank you for sharing your thoughts about divorce mediator in your area. I am glad to stop by your site and know more about divorcw mediator. Keep it up! This is a good read.
    Some Western jurisdictions have a no-fault divorce system, which requires no allegation or proof of fault of either party. The barest of assertions suffice. For example, in countries that require "irretrievable breakdown", the mere assertion that the marriage has broken down will satisfy the judicial officer. In other jurisdictions requiring irreconcilable differences, the mere allegation that the marriage has been destroyed by these differences is enough for granting a divorce. Courts will not inquire into facts. A "yes" is enough, even if the other party vehemently says "no".
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  5. Hello! I will be looking forward to visit your page again and for your other posts as well. Thank you for sharing your thoughts about divorce mediator in your area. I am glad to stop by your site and know more about divorce mediator. Keep it up! This is a good read.
    One of the benefits of mediation is Control. Mediation increases the control the parties have over the resolution. In a court case, the parties obtain a resolution, but control resides with the judge or jury. Often, a judge or jury cannot legally provide solutions that emerge in mediation. Thus, mediation is more likely to produce a result that is mutually agreeable for the parties.
    There are some issues that need to be resolved to complete your divorce.

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  6. Thank you for sharing. Certainly one of the most emotionally charged aspects of your divorce concerns your child or children. Tragically, children all too often get caught in the cross-fire of divorcing parents, when what should be ultimately important to everyone concerned is the welfare of the child.

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  7. Divorce mediation is a non-adversarial method of achieving your divorce objectives through moderated communication and discussion rather than time-consuming and costly litigation. Your divorce mediator will work with you to resolve your differences in a professional and amicable manner with the goal of accomplishing your divorce outside of the courtroom.
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  16. Everyone has horror stories about the Vallejo divorce process. People say that it takes years. People talk about spending huge and unexpected amounts of money on Vallejo family law firms. You hear about many instances where the divorce has harmed relationships with children, family, and friends. Many find that child support payments cause them to live as frugally as students until their children's emancipation. Post-divorce problems can linger for years, even for a lifetime.adultery nc.

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  17. Either way, it can give good results to parties involved in the divorce.

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  18. Does a mediator just help find what the divorce couple can share? Does this also include custody over the children? I am very confused because I only see the after effect of the divorce not the legal process of it. http://www.progressivemediation.net

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