Today, getting a divorce is not the same as it used to be. There are options today. In addition to the method that we all know so well, litigation, today there are also options such as mediation or collaborative law.
Both mediation and collaborative law are methods of resolving your divorce matter outside the court system.
Mediation involves a trained mediator who will assist you and your spouse to resolve your divorce between you. A mediator is a neutral party who will not represent either spouse or give legal advise to either. Usually, a mediator is an attorney, but can also be a mental health professional. The benefit of using an attorney is that the parties have the benefit of the attorney's matrimonial experience and their knowledge as to what a court may or may not do.
Once an agreement is reached, the mediator, if an attorney, can draft the agreement which will be used along with assorted documents to obtain a divorce. It is strongly suggested that each party hire an attorney to review the agreement prior to signing it and in some cases, it is suggested that each party retain an attorney at the beginning of the process to enable the parties to discuss certain concerns with them that may be inappropriate to discuss with the neutral mediator. Additionally, there are times that it may be helpful for the mediator to discuss issues with the attorneys for the parties.
While some may question the need and expense of having to hire attorneys in addition to the mediator, this process is strongly suggested as certain mediation may be more successful with an attorney on each side as well. Regardless, it is still less expensive to have an attorney on each side during mediation than to have two attorneys litigating.
Collaborative law is a second option to the traditional method. Similar to mediation, in collaborative law the parties also attempt to resolve their divorce outside the court. Both parties hire attorneys who have been specifically trained in collaborative law. Both attorneys and the parties sign an agreement that if the collaborative process (settlement) is unsuccessful and that the attorneys realize that the only step to move the case forward will be involving the Court, the attorneys withdrawn from the case and the parties must then retain new attorneys to litigate for them. This actually keeps everyone working toward a common goal, settlement, rather than the prospect of starting all over again.
As part of the collaborative process, the attorneys may suggest retaining the services of a financial expert and a mental health expert (both also trained in collaborative law) to assist the parties and the attorneys in the process. Both experts are neutral. The financial expert will assist in preparing a financial plan for the parties after reviewing their expenses, assets, debts and income and the mental health expert will work as a "coach" during the process to assist the parties in resolving and moving forward during this very emotional process. A child specialist may also be retained if there appears to be issues regarding children, custody and access time.
While it may seem that this could cost a significant amount of money (hiring all of these experts) the cost is nevertheless less than litigation. Plus, in litigation, generally at least one financial expert is retained (if not one for each) and if there are issues involving the children, the Court probably would appoint an attorney for the child. Additionally, a Court may order psychological forensics, which is a very costly process with a mental health professional who, (after hours of interviews with the parties, children, and perhaps teachers, nannies, doctors, therapists) will write a report about his/her findings regarding parenting styles, mental conditional and capabilities.
Both mediation and collaborative law encourage out of court settlements. The process encourages parties to work together to reach an agreement which is palatable to both, as no one in divorce is going to get everything they want. Parties realize that it is beneficial for both of them to reach their own resolution rather than allow a stranger in a black robe on the bench to make it for them.
There is generally less fighting and less trauma to the family using these alternate processes and generally, the time will be greatly shortened to complete the divorce process as the schedule is in the hands of the parties rather than the court.
This is the traditional method. One party files for a divorce, each party hires an attorney, to move the case forward or filing a motion asking for various relief (such as money), the case is assigned to a judge. The court keeps a schedule and requires the parties and their attorneys to appear in court for conferences approximately every 6 to 8 weeks so that the Court can be updated about the case.
The case either settles or is tried in an open court room and all of the testimony is public to those present, which could be dangerous in the "social media" world that we live in. Additionally, litigation is contentious and anger and hatred overtakes the process. Comments are made during conferences or in motion papers that cannot be forgotten.
Children may be forced to become involved and be interviewed by the Judge in chambers (in camera), placing them in the position that no child wants to be. The attorneys, because of litigation, are forced to take adversarial positions and posture for your rights, rather than trying to work together to keep peace in the family, and of course, the more fighting, the more money is being spent.
Deciding which way to go
Mediation and collaborative divorce may not be for everyone. First, both parties must agree to either of these processes. If one does not agree, they are not an option. Second, if there are issues of hiding money from one spouse, or physical abuse, mediation and collaborative are not real possibilities.
To consider either of these options both parties must be willing to work together with their attorney(s) and be open and forthright regarding assets and expenses. If a spouse is going to be difficult regarding assets or tricky and dishonest, a Judge is needed to force him/her to cooperate.
If both parties truly want a resolution and are willing to work hard to obtain a fair settlement, mediation and collaborative law may be an answer for you. If not, litigation is available. While the process can be quite lengthy, litigation does not necessarily mean that the case will last for years and that there will be a trial. Most cases settle before trial, some even during trial.
Regardless of whichever method of divorce is selected, try to work as amicably as possible to eliminate unneeded stress on the family during this turbulent time. Children are always watching and remember that this divorce is not just yours and your spouse's, the children are going through it as well.