Mediation vs. collaborative law: which is the right one for your divorce?

Mediation vs. collaborative law: which is the right one for your divorce?


You've made the decision: you're going ahead with the divorce. Now, before you Google "divorce attorney Portland/Vancouver" and steel yourself for the stress, upset, and eye-watering costs of a trip to the courtroom, ask yourself this:

"What do I want my divorce to look like?"

It may well be that you're not going to escape litigation. Sometimes, for some couples, it's the best way forward. But, there are other options.

If you and your spouse are leaning towards a more respectful approach, you have the option of choosing either mediation or collaborative law for your divorce proceedings.

What are mediation and collaborative law?

Mediation and collaborative law share a similar approach. They're both voluntary, consensual ways to resolve family matters outside of court. Unlike litigation, it's not about one side "winning" or "losing". Instead the focus is on identifying the underlying needs and interests of all parties and using that as a basis for a "fair" resolution to the conflict.

Which is the right approach for us?

Mediation

Mediation is the ideal process for those looking for a flexible approach, with limited input from an attorney. A typical mediation session requires only three people: you, your spouse, and the mediator, although some clients prefer to consult with an attorney outside of mediation sessions and you may decide to consult with other professionals, like a child specialist, financial specialist, or realtor, at some point during the process.

During mediation you and your spouse work directly with the mediator to discuss your case and decide upon the best way forward — but ultimately, you remain in charge of your outcome. Your mediator doesn't decide anything for you or give you advice about what to do; instead, they guide and facilitate to make sure all the decision points are covered fully and respectfully.

Mediation is typically more efficient than litigation or collaborative law, which could lead to a faster resolution and because there is less attorney involvement, costs are considerably lower too.

Collaborative Law

A collaborative law client wants greater attorney involvement, while avoiding a traditional adversarial process. They may want the expertise of an advocate at their side, or they may feel more comfortable or confident negotiating with their spouse with the support of an attorney present.

While collaborative divorce and mediation are similar in that all decision-making is in your hands, and disagreements will never be brought to a judge, there are a few important differences.

First, you and your spouse will each hire a separate attorney to represent only you. Your personal lawyer is your advocate and will provide you with individualized advice while helping you navigate your negotiation so everything gets considered.

Secondly, you and your attorneys agree to voluntarily disclose all information relevant to the decision-making process. This way you know everything is on the table without having to involve the court in issuing expensive discovery or subpoenas.

Finally, both of you and your attorneys sign a "no court" agreement. This places everyone at the settlement table in good faith, and ensures that your spouse's settlement lawyer will not turn on you when negotiations get tough.

If you're not a confident negotiator or your case involves complicated legal or financial issues, the constant support of an attorney might swing you in favor of collaborative law, or you may just feel more comfortable having a professional to confer with at every settlement meeting, and available in between meetings to plan your negotiation. Likewise, if there are long-standing dynamics in your relationship that leave one or both of you feeling at a distinct disadvantage in conversations about difficult subjects, you might want the added insulation and structure provided by collaborative divorce.

Having a good collaborative attorney at your elbow can sometimes give you more confidence in expressing what's important to you, even in the face of your spouse's disapproval. Or if you know you have a tendency to "take over" in conversations with your spouse, you might find it helpful to have a supportive attorney there to nudge you into respectful silence when necessary.

Collaborative law costs are likely to be higher than mediation — there's no escaping those attorney fees — and the process will work out cheaper and more efficient than litigation in most cases, with considerably less stress too. Even when your collaborative case takes more time of expense than you expect, it remains a kinder, more productive and private process than court.

The Deciding Factor:

If you're still not sure which approach would suit you, many of my clients have found this simple visualization trick useful:

Picture the negotiation table. In mediation, the negotiations will generally involve three people — the two parties and a neutral mediator. In collaborative law, the negotiations will generally involve four people — the two parties and their respective collaborative attorneys. (In both processes, a financial neutral, or a co-parenting specialist, may also be present.)

Which of those scenarios seems more comfortable to you? Would you prefer to have only a neutral mediator present for the negotiations or would you like your own lawyer there as well? If you're still not sure or you think your case may turn out to be more complicated than expected, schedule a consultation with me. I would be happy to hear more about your situation and help you decide which process would be best for you.

Ultimately, neither mediation nor collaboration is going to be the best—or worst— choice in all cases. Which approach to use is determined by the unique circumstances of your case, your individual preferences, and the availability of good mediators or collaborative lawyers.

Schedule a consultation today.

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Tuesday, 19 November 2019