Most of the clients who come to my office to discuss their divorce know that they do not want to go to court. Not only is it expensive and time consuming, but they do not want a judge to make personal decisions for them and their family. So, the clients know that they want to stay out of court, but they're usually unsure about what the best alternative option is. Should they mediate or collaborate? When a client asks me this question I first explain the basics about each process.
In mediation my client and his or her spouse will be meeting with a mediator who will lead them through the issues that they need to resolve in order to come to an agreement. The client may (and in my opinion, they should) meet with an attorney before, during and/or after the mediation to make sure he or she understands her rights and obligations and that the agreement that is going to be signed is properly drafted, but the client will not have an attorney by his or her side during the actual negotiations. If the client chooses a collaborative divorce the spouses will each be represented by an attorney who is trained in mediation and collaborative divorce. But all negotiations will take place in face to face meetings that include the attorneys, the clients, and possibly divorce coaches and neutral financial professionals.
After discussing the difference in the processes, we'll discuss which one makes the most sense for this particular client. Mediation may be the best choice if the issues are relatively simple. But what if they're not? What if there are complicated financial issues to resolve? Mediation can still work very well if the client and her spouse are able to communicate relatively well and if there is a basic level of consideration and respect between them. Mediation might not be the best process however if one of the spouses knows much less about the finances than the other, or if there is some other sort of power imbalance between them. In that case, collaborative divorce could be a better alternative because the less powerful spouse will have an attorney by his or her side to explain the law and advocate for their interests and goals. Collaborative divorce will also make more sense if there are complicated emotional issues or differing goals with regard to child custody and parenting schedules. In that case, collaboratively trained mental health professionals in the form of divorce coaches and child specialists can be retained to help navigate these difficult issues.
After discussing these options with clients, they usually have a good idea about which process makes the most sense for them. The next step then is to help the clients figure out how to speak with their spouses about it. That will be the subject of a future post.