January is a month that people often decide to make life changes. If you and your spouse have made the decision to separate or divorce, you may be thinking about how to proceed. Choosing the right process is an important decision because it will affect how negotiations take place. There are three main processes: mediation, collaborative law and litigation. For couples that want to make their own decisions, rather than have a third party decide, the choices that make the most sense are mediation and collaborative law. Negotiations in both of these processes take place outside of the court system in a series of meetings. In both processes, the couple actively participates and sets its own pace. Both processes are voluntary, meaning the process can be ended at any time for any reason. Both processes are also confidential. That means that discussions and all materials developed for these processes are generally not admissible in any subsequent court or contested proceeding. Both processes offer a full opportunity to obtain the information needed to make decisions.
In mediation a neutral third party facilitates the communication between the parties and helps them develop options for the resolution of the issues. The mediator may be a lawyer or some other professional. Both parties should feel comfortable with the mediator. It is important to determine whether the mediator has the appropriate experience to mediate the type of matter presented and a manner that is compatible with you and your spouse. The mediator has a responsibility to assist each mediating party and cannot favor the interests of one party over the other nor should the mediator favor a specific result in the mediation. It is recommended that the parties consult with independent counsel of their own choice prior to signing an agreement.
In the collaborative law process, each person retains his or her own collaborative law attorney to advise and assist during the negotiations. Here, the attorneys participate in the meetings and can assist with developing options in real time. The lawyers make a pledge not to go to court should the negotiations break down. This is an important aspect of the collaborative law process. The lawyers and the parties are committed to working on settlement from the start of the case. Collaborative lawyers are specially trained to work with cooperative strategies while at the same time advocating for their clients. The collaborative divorce can involve an interdisciplinary team that can consist of financial neutrals and child specialists. These neutral professionals help make the process move more smoothly.
Here are some questions to consider when thinking about process choices for separation or divorce:
- Do you want to make your own decisions about your family rather than have a third party decide?
- Do you feel comfortable negotiating with your spouse without an attorney present, or, would you prefer to have an attorney present during the negotiations?
- How will your priorities be addressed in the process?
- Does the mediator/collaborative lawyer have the experience necessary to address the issues of your particular family?
- What is the process or procedure of the particular mediator/collaborative lawyer?
- How can the process address the unique needs of your family? For example, a child that has special needs or if there is a unique financial situation that needs to be addressed.
- How will the negotiations take place? For example, in the collaborative process, there are a series of four-way meetings with the two lawyers and the parties. At the first meeting the parties review their priorities and goals and sign a participation agreement so that everyone understands how the process will work. The meetings may be expanded to include a child specialist or a financial professional. In between, the lawyers meet with their own client. In mediation, the parties meet with the mediator in a series of meetings. In between, they may consult with their own independent counsel. The mediator assists the parties in compiling and reviewing the information necessary to make decisions.
- What is the fee structure?
- How long has the mediator/collaborative lawyer been practicing in the family law area?
- How will the mediator/collaborative lawyer ensure that you have all of the information needed to make decisions?
Agreements that are reached in a cooperative manner usually produce more practical, durable results. Actively participating in decision-making is a better way to protect yourself and your family. A consultation with a qualified mediator or collaborative lawyer may help you make a decision for the approach that best suits your family. For more information about collaborative law or mediation, please click here.