January 11, 2021

Family Law Attorney Advice: Mediation and Collaborative Divorce

By Carolyn Martino, Of Counsel

There is no one size fits all approach when it comes to mediation and collaboration. The appropriate approach to use is determined by individual and unique circumstances of a lawsuit. Availability of good collaborative attorneys and mediators along with individual preferences is also a factor.

Factors Supporting Collaborative Divorce

  1. Desire or need for seeking separate legal representation

You may want to consider collaborative divorce if you want the experience of a lawyer to look out for your best interests and offer guidance every step of the way. For instance, the case may involve a complex financial or legal issue that you are not competent enough to negotiate.

You may find it more comfortable to have a professional attorney advice you at every turn. Attorneys of both parties guide each aspect of the lawsuit in a collaborative divorce. This approach can help address your particular legal representation needs throughout the process.

  1. Inequitable power dynamics in the relationship

You may want to consider adding structure and insulation offered by collaborative divorce if you feel there is a power imbalance in your particular relationship. Maybe your relationship dynamics make you or your spouse feel at a distinct disadvantage in terms of negotiating on difficult subjects.

An experienced collaborative lawyer can go a long way in improving your confidence to express the things that matter to you, even if it is at the risk of a disapproving spouse. Similarly, if you are prone to dominating conversations, a supportive lawyer could nudge you into respectful silence whenever you attempt at ‘taking over’ the conversation.

Factors Supporting Mediation

  1. Control and flexibility

Mediation is a lot more flexible as compared to collaboration. You can start the process with just three participants – the mediator, your spouse, and you. You can also add more people, such as attorneys and experts to the process as and when you need them. However, you don’t really need lawyers and other professionals to be involved if you don’t want to.

Mediation offers more control over the entire process as compared to collaborative divorce. You don’t have to follow a set structure of protocols as with collaboration. Most collaborative lawyers are required to follow specified protocols or rules. In mediation, you get to work directly with your spouse and mediator to decide the process and substance of your dispute.

  1. Cost Efficiency

Mediation is thought to be more cost effective with faster results as compared to collaboration. It is a logistical nightmare and a time-consuming endeavor to coordinate the calendars of all people involved in a collaborative divorce lawsuit, especially when most of them are busy professionals. This can add to the overall cost of the process.

On top of this, active participation of separate attorneys and other professionals is almost certain to inflate the cost of a collaborative divorce as opposed to mediation in which the only professional that is required to be present is the mediator apart from the two spouses. Mediation comes out to be cheaper even when attorney advice is sought from time to time.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.


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