Saturday, January 19, 2008
Divorce Mediation And Collaborative Divorce
What is "divorce mediation"?
Divorce mediation is a form of alternate dispute resolution. If you're on the internet you may see the letters ADR, and that's what they stand for: alternate dispute resolution. Divorce mediation is for people who want to go through the process of resolving their dispute privately. When you go into court, everything's public and all the bad things you say about your spouse happens in a public environment. Divorce mediation is private. You would come into an office, like my office or a retired judge's office, and you would hire a mediator to help you come to a resolution of your problem. The mediator's job is to help you and your spouse find a common ground.
What is "collaborative law"?
Collaborative law is an entirely new process. It's an ADR, an alternate dispute resolution, and it's for people who want to opt out of the judicial system. They don't want to turn the decision-making over to some stranger, who is called a judge, and they want to take responsibility for the major decisions in their family and in their lives. The basic concept is that we work as a team. And, the team has one or two coaches. And, the role of a coach is to help the parties communicate and understand each other's need and to be able to sit and communicate their fears, their desires, their needs and their hopes to the other spouse.
What is the difference between collaborative divorce and divorce mediation?
Divorce mediation and collaborative divorce are ADRs; Alternate Dispute Resolution models. They're very different; they're similar in that you're not going to a divorce court, but they're very different as models. The mediation model is typically a lawyer or a mediator, and a mediator could be a lawyer or maybe isn't, and that person sits with the divorcing couple. Say if one mediator is speaking to two divorcing parties, and sometimes the divorcing parties go outside of the mediation process to converse separately with a lawyer; that's mediation. Collaboration is a team event, so you may or may not have a mediator, you may or may not have one lawyer or two lawyers; you're going to have coaches, you're going to have a child specialist perhaps, a neutral financial and everybody hears what everybody is saying. The difference is that in collaboration, your neutral financial is probably going to be a certified divorce planner and may have other specialties such as a CPA or a financial planner. Your coaches are generally their therapists who work with divorcing parties in helping them communicate, and then you have the mediator or the lawyers; everybody's got a talent. In the mediation model you're asking one person to wear all those hats; maybe he or she is gifted in some of those areas, probably not all. So, that's the basic difference in the two processes.
What are the benefits of collaborative divorce and divorce mediation?
The benefit of divorce mediation and collaborative family law is huge, because the benefit is: you're making the agreement, you're involved, you're informed, and you're doing it willingly.
Must couples agree on everything during divorce mediation?
Most couples end up agreeing on everything during divorce mediation, whether they use the mediation process or the collaborative process. However, it doesn't always work out that way. What I say to my clients is: if you can come to an agreement on 80% of it, we'll work on the other 20%, and maybe we will get an agreement. Default position: you can always go into court and say to the judge, "We've worked out 80%, you need to work out 20%." But I encourage my clients to stay with the process, keep their hands on it, stay focused and come to an agreement.
How do I begin the collaborative divorce process?
To begin the collaborative divorce process, you need to seek out a collaborative divorce professional. How do you do that? Most of my clients find me by word of mouth or Internet referral. So do a web search under “Collaborative Professional,” “Collaborative Practice.” There's an international association of collaborative divorce professionals called the IACP. I believe it's collaborativepractice.com. That's where you find trained collaborative divorce professionals. Talk to your minister. Talk to your banker. Do you have somebody in your life that you go to on financial issues? Do you have an accountant? Do you have a therapist? Do you have a financial planner? Go to these people and ask them, who do they know in the collaborative divorce profession? Use your due diligence. Make sure that you end up with someone who's trained by the IACP, and then that person will help you build your team of professionals.
What happens during the collaborative divorce process?
During the collaborative divorce process, we usually start with the team meeting where all of the professionals are at the table with the parties. We want the parties to review and sign the collaborative principles document, and then we want them to make their commitment to the whole team and not to just one of us. At that point, we start developing agendas. Maybe we've got three or four things we want the neutral financial to be working on with the parties. Maybe we need to gather information. Maybe we need to figure out how to pay for this. Maybe we need to start working on support. So we'll develop an agenda for the neutral financial to work with the parties, and while that's happening, maybe we're pursuing a different agenda with the coaches. Maybe we're working on how to communicate. Maybe we're working on how to separate the emotional track from the business track, because in every family law case, even collaborative divorce proceedings, you have two different tracks running. You have the business of the divorce: the beginning, the middle, the end, the steps that are taken. You have the emotional track. You have the death of the relationship. You have the insecurities, the anxieties, the fear, the anger, the hostility. There're a lot of emotions, and people tend to jump tracks. The beauty of the collaborative divorce process is that when I'm working with my client as the collaborative divorce lawyer or mediator and they want to jump tracks and go into the "I'm hurting, I'm feeling resentful, I'm angry, I'm scared", then I can rotate the coach in and defer that issue to somebody who is really skilled, knowledgeable and trained. I'm very well trained at family law and I'm very well trained at mediation and the collaborative divorce process, but I'm not a coach. I have no training in emotional issues other than working with broken marriages and clients divorcing for 33 years. That's not the kind of training that helps me help them through the collaborative divorce process; it helps me understand where they're coming from, but it doesn't give me the tools to give them to help them work out their problems.
How does the collaborative divorce process affect the participants afterwards?
The collaborative divorce process is entirely different from the normal divorce process and it has an entirely different effect on the family and on the parties. Typically at the end of almost every one of my collaborative cases, we end up hugging each other. It's amazing! Because people are happy with what they got. They got a result that's fair. They got a result that was respectful. It was private, it was interest based. They were heard. They had a sense that they were actually heard and listened to and got wonderful advice from very talented and gifted people and they walk away from it energized. They're whole, they're complete, they can move forward in life.
Can collaborative divorce decisions be contested later on?
I've been asked if collaborative divorce settlements can be contested later on, and the answer is: maybe. The reality is they're almost never contested. And they're never contested because people are getting what they bargained for. They've been empowered by the information, they have a sense that they got what they need, and they know it was fair. When a collaborative case ends, there's a judgment. And that judgment is signed by a judge. The parties never go into a courtroom, but there is a judgment. And that judgment can be set aside under certain circumstances, just like any family law judgment. And so it would be the same criteria that applies. But the really, the issue is why would you want to set aside something that you willingly joined hands with and entered into?
How does collaborative divorce affect my family?
Collaborative divorce affects your family in an entirely profound way. If you have parenting issues in your family law case, in the collaborative process, we're going to bring in a child developmental specialist. That's the voice of the child. Not only is it the voice of the child, but it's someone who really understands what works for children in general, and what works for your child.
How do I begin the divorce mediation process?
If you're interested in beginning the divorce mediation process, the first place to start would be finding a qualified mediator that you want to work with. I think what you really want to consider doing is making that a process that you include your spouse instead of excluding your spouse. Reason being, if you come home and say, "Hey, I talked to this person and this person is wonderful and I want this person to be my mediator or our mediator", your spouse may look at you and say, "Gee I don't trust that, I don't know this person, and you're up to something, I know you're up to something". So, get a list, get some recommendations, talk to some of your local, maybe you know somebody that's used a divorce mediator, maybe you've done some internet research, maybe you've talked to your clergy, maybe you've talked to your financial people, maybe you've talked to your therapist. If you know a therapist or a life coach, that's a really good place to start because they work with the mediators, they work with collaborative remediation trained individuals. Get a list, go shopping with your spouse and see what happens.
What happens during the divorce mediation process?
During the mediation for the collaborative divorce process, typically, we have a series of meetings. And we create an agenda. We perhaps want to create a list of issues that we need to tackle during the collaborative divorce process; and some of them may be resolved in the first meeting and some of them may not. Sometimes we need more information, more feedback. Sometimes people just need to think about things. So it's a series of steps. The idea is to come up with a happy agreement, or an acceptable agreement, at the end.
How does the divorce mediation process affect the participants afterwards?
People that go through divorce mediation generally end up with, if there's such a thing as a better divorce, they'll get it in an ADR, whether its collaboritive or mediation, so typically people are affected positively by divorce mediation and typically they walk away from the process at the end feeling more complete, more whole, less violated. Certainly there's a lot less confrontation. Essentially though, the difference in the end of the mediation and the end of the collaborative process is at the end of the collaborative process they've had coaches and they walk away from that process with better communication skills, better tools, more tools to work with as they continue in life as parents and as former spouses. Other than that, they typically, the experience in both processes is the same.
Can divorce mediation decisions be contested later on?
Typically in a mediation process the successful mediations end in an agreement. Typically the agreement is reduced to a writing and at that point the parties either go to a document preparer or sometimes the mediator offers a service to take the document, the mediated agreement, and turn it into a judgment because it's not a court order until a judge signs it. And once a judge signs it then you back in, if the question is how can I undo this and it's a judgment its the same as any other judgement there are certain protocols just like any other judgment and certain time constraints and certainly varies from state to state and so you'll want to consult with your professional on that.
How does divorce mediation affect my family?
Divorce mediation can have a really positive affect on your family, because you're resolving your dispute privately, fairly, and you're taking responsibility for the resolution by coming to an agreement. So typically when people walk out of court and they've been forced to do something, it can have a devastating affect on the family. It can effect how you look at your whole family: how you look at your children, how you look at the other parent, your emotional makeup; the whole landscape of feelings that you go through. When you walk away from mediation, you're usually feeling pretty good about your family because you've come to an agreement and nobody forced you to do it. So you're feeling good about that.