Mediation and Collaborative Divorce are two ways divorcing couples can choose to resolve conflict. Each process offers a way to keep you out of court. They are, however, very different. How do you know which option makes the most sense for you and your family?
In North Carolina, a high percentage of divorce cases are settled outside of court in mediation. This is in large part because mediation is a mandatory for divorcing couples who have filed a lawsuit seeking a court determination of child custody and equitable distribution.
Spouses often attend mediation before a lawsuit is filed, or schedule and participate in mediation after a lawsuit has been filed and before the case goes to trial to avoid the unintended consequences of a court ruling.
There are two options you can choose to participate in a mediation:
– Attorney-assisted mediation: You and your spouse each have an attorney to attend mediation with you. You each have an attorney to advise you and advocate for you before and during mediation.
– Parties-only mediation: Attorneys do not attend the mediation. You and your spouse may each choose to have an attorney advise you, often before mediation, and after mediation when it’s time for an attorney to prepare the settlement documents.
Mediation is typically scheduled to take place in one intense 8+ hour day session, or can be scheduled in 1 or more shorter (approx. 4 hour) sessions. During the mediation, the mediator begins the day with everyone in 1 room to share the rules governing the mediation process. After the opening session, subsequent negotiations take place in separate rooms, and the mediator goes between rooms to facilitate the communication of offers and counter-offers.
The mediator is neutral and is prohibited from giving legal advice.
To better understand the mediator’s role, think of mediation as a conversation in an informal setting with a referee present to ensure communication remains productive. During the mediation, the mediator is an impartial referee who works with both parties to understand each other’s concerns, bridge their differences, and arrive at an agreement that works for both.
The mediator is not a decision-maker.
The mediator facilitates the discussions. Given the mediator’s experience, she may make suggestions about how to think about resolving the issues in dispute; however, she cannot make decisions for you and your partner. Even though Irene is an attorney, she is a neutral facilitator when she mediates and is not acting in her role as an attorney. Therefore, it can be very helpful to have at least one consultation with an independent attorney before going to mediation to ensure you have obtained legal advice on the issues and you feel prepared to advocate and negotiate on your behalf during the mediation.
The mediator cannot draft binding settlement documents.
If an agreement is reached, the attorneys present with the parties will agree on who will prepare the settlement documents.
If the parties do not have attorneys, the mediator will prepare a non-binding “memorandum of understanding” that outlines the general terms reached in mediation. The mediator is prohibited from drafting settlement documents, even if all participants agree. Recognizing that one party will need to hire an attorney for the purpose of drafting the settlement documents, the other party may choose to hire an attorney for the purpose of reviewing the settlement documents.
Mediation can be an intense experience, considering it typically takes place on one day and all issues are addressed to get to a resolution. By focusing on resolving all the legal issues in a global settlement, mediation is an effective way to end disputes and avoid courtroom battles.
The Collaborative Divorce Process, which is explained below, will generally be your preferred option if, like in mediation, you want legal representation from an attorney during the settlement negotiations, but, unlike mediation, you want the negotiations to take place in a supportive win/win environment, rather than a combative win/lose environment where court looms.
Each spouse must hire and be represented by a Collaboratively-trained attorney.
In the Collaborative Divorce Process, each spouse hires and is represented by their own independent Collaboratively-trained attorney. Collaborative attorneys educate their clients about their responsibilities and legal rights, but they do much more than that throughout the divorce process. Attorneys who are skilled in Collaborative have extensive training and experience in working with clients on a high level to achieve their client’s particular priorities and goals during and long after the divorce.
Collaborative attorneys take hide-the-ball tactics off the table and engage in effective communication and cooperate in a way that is diametrically opposed to how traditional attorneys operate. As a society, we are accustomed to attorneys often making things worse, more difficult and resulting in couples getting stuck in costly, protracted litigation. Collaborative attorneys strive to make life better, to help clients move on, and to support clients in feeling whole again after the divorce.
Spouses and their attorneys begin the process by signing a written participation agreement and commitment to the Collaborative process.
Spouses who choose the Collaborative process make a commitment at the very beginning of the process to never threaten or go to court. At the very first Collaborative meeting, spouses and their attorneys will meet to review and sign a Collaborative Participation Agreement.
After the first meeting, conversations about all issues are conducted in a series of highly structured, private, face-to-face meetings between the couple, their attorneys and other members of the professional team, as needed and explained below. Each meeting will be based upon a written, agreed upon agenda and will be followed up with action items for the next meeting.
The parties have direct input on deciding and agreeing on deadlines, meeting dates, and agendas, and participate in brainstorming options for resolving all issues.
With the guidance of their attorneys and the added value of neutral professionals with tailored advice, the participants work together to build an agreement on the division of property, finances, parenting, spousal support, child support and all other issues that are important to each family member.
The Collaborative process may invite other skilled neutral professionals to join the professional team guiding you and your spouse.
It is often valuable to invite neutral allied professionals to be a part of the Collaborative team. These professionals are licensed and have credentials in their respective fields and are trained in Collaborative divorce. As part of the process, you will discuss with your attorney whether or not having a divorce coach, neutral financial expert, or a child specialist join the professional team will save resources and ensure the process is efficient. Using their expertise, these experts provide specialized advice, identify creative solutions, and keep the parties focused on problem-solving throughout the process to collectively achieve an outcome that’s best for everyone. Especially when children are involved, having neutral professionals involved enhances healthy communication and helps to minimize the inherent stress of divorce.
Transparent, private and constructive negotiations get couples through the divorce and on to the next chapter of their lives.
Documents are gathered and efficiently shared early in the process. Information that is relevant to making solid decisions throughout the process is openly shared.
Conversations take place in an environment where the professionals and participants treat each other respectfully and in a dignified manner. Negotiations are interest-based and centered on needs, priorities and goals to promote win/win solutions.
Despite the reality that divorce is difficult and emotions often present hurdles, the professionals work together to promote productive dialogue and generate creative options to effectively reach a resolution. They guide and support clients every step of the way, and the goal of the negotiations is to brainstorm as many options as possible and then craft an outcome that durably resolves the issues. This method of brainstorming and considering the consequences of each option skillfully builds an outcome that reconfigures the family and supports the ability of both spouses and the children to thrive in the next chapter of their lives.
Respectful process with no adversarial gamesmanship tactics or threat of court.
The hallmark of the Collaborative Divorce Process is that the North Carolina Collaborative Law statute requires that attorneys who are engaged in Collaborative Law process agree and commit in writing that they will never represent either spouse in contested court proceedings. This means that in rare circumstances when spouses are unable, with the support of the team, to arrive at an agreement on all of the issues, the Collaborative attorneys and other professionals must withdraw from the process and trial attorneys will need to be retained to start over and take the matter to court.
This is the superpower and advantage of the Collaborative Divorce Process.
No one in the process devolves into using costly and antagonistic tactics. No one gets to the point where they declare they are just going to “go to court.” By removing court as a threat and an option, attorneys are fully focused on using only problem-solving techniques and skills. With the guidance and support of the professionals, the couple learns new tools to navigate emotion and conflict and to have effective communication about their children. They maintain full control of the outcome throughout the process and successfully work through the issues to achieve a durable, lasting agreement. Perhaps along the way, they also create an ending of the marriage that is dignified and one that the couple can be proud of when they look back at how they chose to handle their divorce.
*This blog was originally published here by King Collaborative Family Law.