In Mediation, spouses work with a neutral third party trained in conflict resolution techniques to reach agreement on custody of children, visitation, property division, spousal maintenance and other issues.
This differs from Collaborative Divorce, in which each party is represented by his or her own attorney, also specially trained in conflict resolution techniques. Both approaches offer many of the same advantages over traditional litigation.
Mediation works, in part, by helping people to see past their positions to their underlying interests. For example, a husband might come into mediation feeling that joint custody is absolutely necessary and not negotiable. Mediation might help reveal he's actually afraid he'll lose connection with the children. Since there are many ways to ensure that a rich and meaningful relationship with children is maintained and even enhanced, identifying the underlying issue opens creative possibilities the parties hadn't considered. Conversely, a wife might arrive in mediation feeling she absolutely must receive no less than $X per month in spousal maintenance. In mediation, she might discover her underlying concern is simply ensuring she is able to meet her basic needs. Since economic security can be achieved in many ways, with or without spousal maintenance, here again, possibilities are opened through recognition of underlying interests.
The key to achieving win-win agreements lies in identifying solutions that are palatable to both spouses. As is also true of Collaborative Divorce, those solutions can be endlessly creative and go far beyond anything a court would consider, or even have jurisdiction to impose absent agreement of the parties.
When appropriate, mediators may refer the spouses to other professionals for counseling on custody and visitation issues, asset valuation or tax advice. Mediators should always suggest attorneys review the proposed agreement and assist in drafting documents to effectuate the settlement and divorce. Although I am an attorney and a mediator, one cannot be both in the same case. Therefore, after mediating a settlement, I will refer the parties to other attorneys, with problem-solving philosophies similar to mine, to draft final documents.
Mediation and Collaborative Divorce Compared
Many of the Mediation principals and processes discussed above are incorporated into Collaborative Divorce as well. The main differences are that in Collaborative Divorce:
- each spouse is represented by an individual attorney who is specially trained in the collaborative process;
- parties can obtain individualized legal advice from their respective attorneys;
- a team approach is utilized that more easily integrates divorce coaches, child specialists and financial planners; and
- the attorneys can draft and review legal documents.
Some spouses feel more comfortable with the collaborative approach because it provides the added support of a lawyer for each party who can advise and protect his or her client and also prepare and review legal documents. In addition, the input of other skilled professionals, such as therapists and financial planners, can be extremely valuable. However, Mediation may be more cost effective.
In my experience, Collaborative Divorce, with its ability to seamlessly bring the support of attorneys, therapists and financial planners inside the divorce process, produces the very best long term results. Since parents will be connected for the rest of their lives – through graduations, weddings and grandchildren – achieving the optimal settlement yields dividends that justify any additional expense that may be incurred.
For some, however, the added benefits of Collaborative Divorce may be superfluous. At times, even Mediation is unnecessary since some couples can negotiate quality settlements on their own. However, beware that when negotiating on your own, it's all too common for fears to arise and escalate, causing even the most amicable cases to fall apart. Working with professionals, such as mediators and collaborative attorneys who are trained to create and facilitate an emotionally safe environment, divorcing spouses are far more likely to reach productive, high quality settlements.
But no matter the method employed to reach settlement, I strongly recommend each spouse consult with an attorney before signing any agreement. I also recommend having a qualified domestic relations attorney draft all final documents, such as the Marital Settlement Agreement, Decree of Dissolution, any Qualified Domestic Relations Orders, Child Support Orders and Wage Assignments. All too often, a former spouse comes to me for help fixing a Decree of Dissolution or other court order that didn't properly reflect the terms of the agreement he or she thought had been reached. Once formal orders have been entered, it is likely to prove difficult or impossible to fix these problems, and any repairs will certainly be more expensive than having had the documents correctly drafted the first time.
Even when documents are professionally prepared, the financial and emotional costs of a mediated or collaborated divorce are likely to be substantially less than those of a traditionally litigated divorce, and the benefits of these approaches are immeasurable. When people retain control over the final settlement by negotiating its terms, they feel a sense of satisfaction and ownership over those terms. Even if they've had to make difficult concessions, they've chosen where to give and where to hold firm. As a result, spouses who employ Mediation or Collaborative Divorce almost never find themselves in court to enforce or modify the terms of their agreement.
In my experience, spouses who negotiate win-win settlements feel good about themselves and each other. As a result, they are well positioned to share parental responsibilities, and to fully participate – even after the children are grown – in graduations, weddings and the lives of grandchildren. The children have been protected from the contentiousness of adversarial divorce, which can otherwise leave lifelong scars. And such positive approaches typically take less time and cost less money than full blown litigation.
Both Mediation and Collaborative Divorce can also be used if issues arise after the divorce is final, regardless of whether the original case was negotiated or litigated.
