Divorcing amicably or “collaboratively” is the smart way to divorce. It will likely save you and your spouse significant amounts of time, money and stress.
There are two main ways to divorce collaboratively: through divorce mediation and through what lawyers refer to as “collaborative divorce.” While you probably equate “collaborative” with “amicable,” in the legal world, collaborative divorce specifically refers to a very unusual way to hire divorce lawyers to represent you and your spouse in your negotiation, which is explain in detail below.
Both collaborative divorce and mediation provide alternatives to litigation for couples seeking to divorce privately and amicably, without ever having to set foot in a courtroom or face a judge. There are, however, significant differences between the two processes, which are important to for couples understand in order to choose the best option for your individual case.
However, in short, in the vast majority of cases where a couple is looking to divorce amicably, divorce mediation is the best option because it has significant advantages over collaborative law.
Divorce mediation is a process in which a divorcing couple works with a divorce mediator – a neutral experienced divorce professional — to help them resolve all aspects of their divorce case, including property division, support, and child custody.
The divorce mediator does not represent either party, but instead works to facilitate communications between the parties, make suggestions, and guide them to a resolution of their issues that is fair to both parties. Mediation can work even in acrimonious cases as long as both parties are be willing to engage in good faith negotiation and compromise.
In most states, divorce mediators are not required to be attorneys, however, it is really best to hire one who has been a practicing divorce lawyer. The mediator should be knowledgeable in divorce law in your area, as that can be helpful in directing negotiations. Non-divorce lawyers simply do not have the knowledge or experience to guide you correctly or to draft clear and legally binding marital settlement agreements. (All SnapDivorce mediators are all practicing family law attorneys and have decades of real legal experience in the field).
Although it is smart to hire a divorce mediator who has been a practicing divorce attorney, divorce mediators do not provide either parties with any specific legal advice or strategies. They can discuss the law in general and their views on your case based on their experience as to how a similar case might be resolved in court.
Divorce mediation is informal, flexible and can be tailored to the parties’ specific needs and circumstances. The speed of the mediation process is largely controlled by the parties and most cases require only a few mediation sessions in order to reach an agreement. Once the issues are resolved, the mediator can draft the formal agreement and processes the divorce through the court system. Because there are only three parties involved in the mediation process (the couple and the mediator), mediation is almost always the simplest, most cost-effective and expeditious way to amicably divorce.
Finally, while the overwhelming majority of mediated divorces are successful. In the unlikely event that the mediation does not result in an agreement, the parties are free to pursue other options such as litigation or arbitration.
Collaborative divorce is a hybrid of mediation and traditional litigation. In collaborative divorce, each party hires his or her own collaborative divorce attorney (a divorce lawyer trained in collaborative law) to represent their interests. In this way it is similar to traditional divorce litigation. Then, both parties and their attorneys sign a contract, called a participation agreement, stating that they are committed to using collaborative techniques in order to resolve the issues in their divorce. As part of the collaborative process, the parties often utilize a team of outside professionals (such as financial professionals, child specialists, mental health professionals) in order to assist in reaching an agreement. The parties also agree in the participation agreement that if they are unable to reach a settlement, the attorneys will not represent them in court.
The biggest problem with collaborative divorce is that if the parties do not successfully reach an agreement using the collaborative process, the two collaborative divorce attorneys are disqualified from representing the spouses moving forward with the divorce – meaning that the parties must hire a new set of attorneys moving forward. This can be both frustrating and expensive for the parties and require a significant amount of additional time and legal fees if the process is unsuccessful.
Collaborative divorce is often equally or in some cases more expensive than traditional litigation depending on the complexity of the issues, the participation of outside professionals, and how many sessions it takes to reach an agreement.
The Take Away
To summarize, both divorce mediation and collaborative divorce offer sensible alternatives to the traditional adversarial divorce process. Both allow divorcing couples to avoid court, make their own decisions, control the outcome of their case, and minimize emotional damage to the family as a whole. For most couples, however, divorce mediation provides the most practical and affordable option.