Thursday, September 30, 2010

Mediation Vs. Collaborative Divorce

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


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.