Wednesday, June 1, 2016

Why Choose Collaborative Divorce Over Mediation?

When people are considering their options for divorce, it usually boils down to litigation, mediation or Collaborative Law, if they are aware of the Collaborative option.  If they choose to avoid traditional litigation, they usually consider either mediation (often without attorneys) or Collaborative Law.

So, why would someone choose Collaborative Divorce over mediation?  For different people, one process may work better or feel better than the other.  Here are some points to consider if you face this process decision.

1.  With Collaborative Law, each party will have their own attorney throughout the process.  That can lead to more informed decisions and some assurance that the important issues will be discussed and resolved.  With mediation, sometimes parties choose to work with a mediator and without attorneys while they hammer out an agreement.  That will save money initially, but sometimes the parties, without attorney guidance, make bad decisions that have to get un-done. That gets expensive and it might kill the agreement. Sometimes, it's better to spend a little more money as you go along than to take a chance on making some bad financial and life decisions.

2.  In Collaborative, we normally use a team of helpers.  On financial decisions, a neutral financial professional works with both parties to gather and organize financial data. That's especially helpful when one spouse does not really have much financial experience or knowledge.  On children's issues, the neutral therapist or child specialist helps the parties calmly work out a plan to share time and responsibility regarding the children.  Both neutrals are much better than relying on just standard guidelines approaches.  They can help the parties be creative because of their expertise and experience.

3.  There's a more informed decision in Collaborative. With attorneys and neutral experts, plus an explicit agreement to share all relevant information, Collaborative Divorce provides the means to get the needed information to both parties.  In mediation, there is less oversight and it can be hard to get some information if one side wants to avoid disclosing certain facts.

4.  In Collaborative cases, documents get prepared correctly.  In mediation, especially without attorneys, it's often hard to find someone  who will prepare the documents.  Even worse, some people with significant assets attempt to use online forms, a sure recipe for disaster.

5.  Collaborative Law utilizes interest-based negotiations.  The parties start off by establishing their goals and interests, and then the negotiations are always focused on trying to meet the needs of both parties.  In mediation, most often, the parties revert to positional bargaining, like that used in buying a used car.  One side starts high and the other starts low.  Often, only one of the parties comes out in good shape in an agreement.

Let me emphasize that mediation can be a very good process.  I am a mediator and I strongly support the process. The biggest problems occur when the parties try to save money by negotiating their own divorce without lawyers.  That will almost always lead to major problems.  Please consult with a lawyer before you start negotiating on your own on such serious matters.

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