MEDIATOR / COLLABORATIVE ATTORNEY
Why choose mediation or collaborative law?
Divorce is a time of great emotional upheaval. It represents a drastic change for families and, for most people, it is a frightening and stressful time. In a traditional litigated divorce, these emotions are often inflamed and exacerbated by a process that places a premium on one party “winning” at the expense of the other. The parties relinquish control over the divorce process by hiring attorneys to negotiate for them. The parties become bystanders while their lawyers and the judge work out the crucial issues of their divorce. In contrast, mediation and collaborative divorce allow the parties to resolve their own conflicts during and after the divorce.
Mediation is a cooperative process which can significantly reduce the time and cost of the divorce process. An agreement can usually be reached within two or three months without the occurrence of a protracted legal battle.
Because the parties are the architects of their own agreement, they are more likely to honor the agreement reached through mediation than an agreement reached through an adversarial process. Consequently, conflict after the divorce is minimized or eliminated.
The communication and problem solving skills learned during mediation help the parties successfully resolve problems associated with co-parenting, thereby reducing the likelihood that either party will resort to the courts to settle future conflicts.
Mediation is a process that values children. It insulates children from the divorce process, thereby shielding them from the animosity and rancor usually associated with a litigated divorce.
While these statements are made with regard to mediation, they apply to the collaborative process as well.
How long does mediation take?
While the complexity of each couple's situation dictates the amount of time, on average couples meet with the mediator for 6-8 mediation sessions. Usually, it takes approximately 4 months from the time the divorce action is initiated until the final uncontested hearing.
Can couples who don't get along successfully mediate their divorce?
Yes, it is a common misperception that for mediation to be successful, the parties need to see eye to eye on all their issues. The mediator's job is to create an atmosphere where the parties can communicate, problem solve, and work productively toward resolving the issues in their divorce.
Can mediation be successful if the parties are not "equal?"
The job of the mediator is to keep the "playing field" level by making sure both parties' needs, concerns, and wants are heard. The mediator has an obligation to ensure that neither party takes advantage of the other, including ensuring that both parties disclose all relevant financial information, including assets and liabilities.
Do I have to go to court if I mediate my divorce?
Yes, both parties must appear in court to finalize their divorce. Once the parties have resolved all their issues, the mediator will draft a detailed written agreement which the parties bring with them to court on the day of their uncontested hearing. After the judge reviews and approves the agreement, the divorce is final.
Do I need to hire an attorney if I mediate?
While it is not a legal requirement, it is strongly suggested that couples in mediation retain individual attorneys to review any agreement the parties ultimately reach. While the mediator can explain the law to you, he/she is ethically prohibited from giving either party individualized legal advice. Attorneys can explore with you different options you may have under the law and offer you their legal opinion.
What is the difference between mediation and collaborative law, and is one better than the other?
In mediation, both parties meet with a neutral mediator who helps the parties try to resolve their issues. In collaborative law, each party is represented by their own attorney who helps the client to advocate for himself or herself in four-way sessions where the attorneys and parties try to settle their issues. In both mediation and collaborative, the goal is settlement. Mediation is better suited for individuals who are comfortable negotiating face to face with their spouse, without the added support of an advocate in the room with them, and who have equal knowledge of the family's finances. Collaborative law is a better fit for a person who feels the need for an advocate, who has a lesser understanding of the parties' financial situation, and who feels intimidated negotiating directly with their spouse.