Why is Collaborative Law Better than Mediation?

Although I am a Mediator as well as a Collaborative attorney, I almost always recommend using the Collaborative process, rather than Mediation or Litigation, for divorces and other family law issues. That's in spite of a very impressive success rate for Mediated cases. 

Mediation has its place in the world of dispute resolution.  Once Litigation has started, Mediation is ordered by courts in North Texas in most cases before the parties can have a final trial. The reason is that almost every case will settle in mediation.

So, why the preference for Collaborative Law over Mediation or Litigation? Here are some of the reasons that are important.

1.  Collaborative work starts at the beginning of the case. Mediation usually occurs months down the road.  There have been a lot of hearings, documents exchanged, arguments had and money spent by the time the case gets to Mediation. In contrast, we start direct communications (talking!) from the beginning.  We don't spend time and money going to court, doing Discovery (formal exchange of documents) and arguing over lots of side issues.  We identify and focus on the issues that are important to both sides.

2.  Often, Mediation is done with a court date looming in the background.  The implicit threat of court often eliminates some options. In Collaborative, we control our timetable and work as fast or slow as the parties want.  We don't have a threat of compulsion or an adverse Judge's ruling  to force an unpleasant agreement. In Collaborative cases, we have up to two years during which the Court cannot control our schedule.

3.  Mediation usually occurs after a lot of problems continued and often got worse.  Collaborative Law uses a neutral mental health professional, with the close cooperation of both attorneys, to manage emotions and communications. Plus, the structure of the Collaborative Law process is much more rational.  We identify the goals and needs for both parties.  Then we gather information about the parties, their children and their finances.  Next, we generate options for settlement, followed by negotiations to reach agreement so that the needs of both parties are met. Finally, we draw up the paperwork and get it signed by the Judge.  When problems come up, we work together to find solutions because we have all committed to do so.

4.  Collaborative Law is not part of a strategy to financially weaken the other party, a common strategy in Litigation.  Unfortunately, there are sometimes motions and hearings in Litigation that seem to serve little purpose other than to harass the other party and drain their resources. In Collaborative cases, we know that the parties are better served by staying focused on the issues relating to settlement of the problems they have identified. We work on being efficient and regularly review the financial accounts of the parties so everyone knows what's going on.

5.  Collaborative Law eliminates ambush and strategies to "win". Both sides work together to achieve the goals for both parties. There's no solution until both sides are satisfied.  It is not a situation where there's only one "winner"! Both sides have to win, or we keep working.


These are just some of the reasons why Collaborative Law is often a much better process than Mediation or Litigation for handling family issues, including divorce.  For more information relating to your specific circumstances, go talk to a trained, experienced Collaborative attorney.  It will be time well invested.

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.

What is Family Peace Worth?

At any time of the year, it's easy to find families in turmoil.  In some cases, it gets worse around the holiday season. Even in intact families, there's often a lot conflict.  People don't get along with each other.  Sometimes disagreements can be resolved.  Counseling is a good option when the problems get more intense.  Unfortunately, counseling won't always put Humpty Dumpty or upset spouses back together again.

History shows that many people are thinking about divorce during the holidays.  Family conflicts can become unbearable,  or maybe there's just no fire anymore.  In December, between multiple religious holidays and the end of the year, many people start looking for relief by splitting up the family and terminating the marriage.

Traditionally, when people think of divorce, they picture court battles, dirty tactics and spending lots of money.  For most people, that's not appealing.  For the people who look forward to the battles, I don't have any encouragement.  My interest is in helping the people who want to avoid destruction.

People should be aware that they have a choice.  They can choose litigation and fighting, or they can focus on finding peaceful solutions through quiet negotiations around the kitchen table, in mediation or using Collaborative Law.

• Kitchen table -- With this approach, the parties meet, usually without attorneys, and directly negotiate a comprehensive agreement to settle the divorce issues.  This rarely works, but can work where there are few assets and debts and where they are not really fighting over the children.  When it does, I recommend that they consider hiring an attorney to draw up the papers. Some problems with this approach are that issues and assets may be overlooked, one side may control the information and one side may be in a more powerful role in the relationship.
• Mediation -- In Texas, most family law mediations involve both parties and their attorneys.   Having a neutral third-party mediator work with the two sides is a very effective way to resolve the case.  Before having the mediation, information must be shared. In mediation, the information is reviewed and discussed.  When the parties can agree on the facts, they can move to a final settlement. The mediator typically  moves back and forth between the two sides, carrying proposals for settlement as the parties move toward an agreement.  The process is usually successful, but often occurs many months after the divorce process began.

• Collaborative -- The Texas model for Collaborative Law usually includes a neutral therapist (MHP) working as a communication facilitator (and sometimes as a parenting plan advisor), and a neutral financial advisor (FP) who helps both parties gather and organize the relevant financial information to be used in dividing the assets and providing support for the parties and their children. Much of the preliminary work is done without the attorneys present, which saves money for the parties.                                                                                                             There will be a series of joint meetings with the parties, attorneys and the MHP and FP where issues are identified, goals are set up, information is gathered and shared, and then options are developed and agreed upon. The parties agree to not go to court.The process is usually successful, but if it breaks down, the attorneys have to withdraw (since they agreed to not go to court); that's one of the main reason the process is successful, since the parties don't want to start over with new lawyers and the original lawyers don't want to lose the business.  The result is that they don't give up easily -- they keep looking for other creative ways to settle difficult issues.

There are good and bad points about each approach.  Mostly, the best approach may depend on your situation.

• If you have the superior information or bargaining strength, the Kitchen Table may be best for you, if you can get your spouse to try it. 

• If you are in litigation, Mediation is usually the best way out. 

• If you are just starting out and want a safe, reasonable process, try Collaborative Law.

For best results, consult with an attorney to figure out the best way for you to proceed in your situation.

How to Negotiate Effectively

A recent post on Human Law Mediation had five great tips for more effective negotiating in mediation. While some of these tips could also improve your efforts in the Collaborative Law arena, the list highlights some of the differences in approach between Collaborative Law and mediation.

1. Plan and prepare in the right way. In the Collaborative context, this would include thinking ahead about what your goals are. How do you see yourself coming out of this process? Think about your major long-term goals as well as some important but short-term ones. Use neutral experts to help you decide what you should focus on. Gather and share all the information you have in your possession on any relevant issues. Thinking and planning ahead can help the process move more smoothly and be less stressful.

2. Listen more than you talk. One way to increase your chances of success is to spend more time listening to your spouse (or the other party). In relationships, it is not unusual for partners to develop patterns of communication where one party tends to be more verbal than the other. Even if you are the more silent one, you may be tuning out your partner rather than actively listening. Having a mental health specialist help with the communication issues can result in both parties listening more effectively.

3. Keep emotions in check. Having a mental health professional involved helps keep the emotions in perspective. While emotional reactions need to be dealt with, they do need to be controlled. You can do a much more effective job for yourself if you can avoid being too emotional. It helps to keep in mind what your overriding goals are.

4. Balance aggression against cooperation. In a Collaborative case, aggression is controlled and avoided. Cooperation is the approach that is acceptable. This illustrates a major difference between Collaborative Law and other types of negotiation.

5. (Generally) make the first offer. This tip relates to "positional" bargaining (often used in mediation), rather than "interest-based" bargaining (a fundamental part of Collaborative Law). In positional bargaining, one side stakes out a position and uses that to try to reach an anticipated result. Interest-based negotiations focus on the actual goals and needs expressed by the parties and the parties work to create solutions that help them achieve the goals for both parties. The thought is that someone can limit or expand the range of possible settlements by making the first offer.