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Utilizing Mediation and Collaborative Law in Divorce

There are alternative ways to resolve divorce disputes without the need for prolonged, costly litigation. For people seeking a more amicable, less expensive and more expeditious way to resolve differences in a divorce, mediation and collaborative law might be an approach to consider.

Many spouses are looking for helpful ways to work cordially toward the resolution of their differences without the need for litigation. This is especially true for parties capable of working together to resolve these issues.

Mediation: What Is It?

Meditation is a forum where a neutral third party mediator facilitates discussions between the divorcing couple to promote creative agreements without the need for litigation. Mediators are neutral, meaning that they are prohibited from imposing their own judgments in the dispute. Their job is to help parties work together to reach a fair and feasible agreement.

Mediation may be employed to avoid litigating disputes altogether, or it may be used to narrow the number of disputed items needed to be litigated in court. It may be utilized to resolve differences involving:

  • Child custody and visitation
  • Child support
  • Spousal maintenance
  • Property division
  • Post-judgment modification and enforcement

Mediation Regarding Child Custody and Visitation

Either parent or the court may initiate mediation of child support matters. There are a number child custody agencies that will attempt mediation before conducting a formal custody study. The court may initiate custody, if on the face of the petition it appears child custody will be contested. Like any other form of mediation, either party may also initiate it upon request. If there is probable cause that a party or a child has suffered sexual or physical abuse from the other party, the court will not require mediation.

Mediating child custody and visitation issues is seen as a favorable way to reduce animosity between divorcing parents and to facilitate the creation of an agreement that helps ensure that the child has continued contact with both parents after divorce.

The Outcome of Mediation

The goal of mediation is to help parties communicate in an attempt to develop a mediation agreement. The mediator will help create an agreement that addresses important disputes. It is recommended that each party have an attorney review the agreement. If both parties agree, this settlement will become part of the martial dissolution decree or the stipulated agreement.

If the parties don’t reach a decision through mediation, the mediator will recommend, to the court, that an investigation is needed or that additional methods must be used to help facilitate an agreement.

Collaborative Law and Divorce

Collaborative law is a form of alternative dispute resolution where divorcing parties and their trained collaborative lawyers agree in writing that they will resolve disputes without the need for further court involvement other than to approve the stipulated agreement.

Family law attorney Stu Webb of Minneapolis, Minnesota, helped to create this method of alternative dispute resolution, in the late 1980s. It quickly spread throughout the country and is now practiced throughout the United States.

Some key features related to collaborative law, include:

  • The collaborative commitment: Both parties and their lawyers sign the agreement before beginning the process. It states that the attorneys are to provide advice and representation throughout the collaborative process. They must focus on facilitating a negotiated consensual agreement, consenting to withdraw from the case if it proceeds to litigation.
  • Four way meetings: Almost every meeting includes both spouses and their attorneys, where they discuss the parties’ concerns, needs and goals.
  • Team approach: A team of professionals may offer advice and insight to the parties during the meeting process. The participating specialists may depend on the specific matters at issue, but often include financial planners, medical health professionals, mental heath professionals, child advocates, tax planners, estate planners and others.
  • Transparency: The collaborative process focuses on the free exchange of information without the need of formal discovery.
  • Holistic emphasis: Parties are encouraged to pursue a holistic approach to resolve family conflicts, which usually involve emotional, financial and interpersonal issues.
  • Client Control: Clients must understand that they retain ultimate control over the outcome, thus giving them a greater incentive to work amicably with other parties.

Differences Between Mediation and Collaborative Law

While mediation and collaborative law serve the same purpose, to help people resolve disputes without the need for litigation, they work to accomplish those objectives through slightly different avenues. In collaborative law, all parties agree to refrain from litigation. In mediation, the parties may litigate unresolved issues. In mediation, parties are only required to hire a mediator, though it is recommended that an attorney represent each party. In collaborative law, each party must hire an attorney to represent and counsel them.

How an Attorney Can Help

It is important to understand your options when going through a divorce. An experienced attorney can help you make an informed decision on whether mediation or collaborative law is right for you.