As an experienced Bay Area family law professional, I’m a big supporter of mediation. I’ve spent countless thousands of hours in contentious courtroom divorce proceedings, and it’s not the ideal way to go if you’re moving forward with divorce. Last month, we focused on the differences between divorce mediation and DIY Collaboration (filling out your own paperwork and filing it with the court).
There is another option, which is called collaborative law processes for divorce – or collaborative divorce proceedings. This option works well for individuals or couples who prefer retaining independent counsel – but still want to minimize overall expenses, courtroom drama, and unnecessary stress.
Mediation vs Collaborative Law Processes: Which Is Best?
First, we’ll define each option, and then we’ll present scenarios where collaborative divorce may serve you better than mediation practices. Regardless of which one you choose, both options reduce total divorce expenses, protect the confidentiality, and keep you out of the ugly world of courtroom divorce litigation.
As the name implies, divorce mediation is designed to help couples navigate their divorce with fairness and integrity while minimizing the negative emotional spectrum and stress. It’s highly recommended for couples who have children as the stress and tensions inherent in courtroom battles put a detrimental strain on children.
In this scenario, the couple meets with a family law mediator. The lawyer serves as a neutral party who listens to both sides, reviews the assets/financial accounts, and provides his/her input on how a judge would weigh on any existing conflicts or requests. In addition, family law mediators prioritize the well-being of children, so they also help with custody and child support agreements.
The idea of mediation is to provide a safe and comfortable space for both parties to review the facts and where legal disputes can be discussed – and hopefully resolved – to both parties’ satisfaction. Mediation is also much more affordable than the fees associated with courtroom proceedings. While divorce and family law issues are often heated and tragic, my goal is to keep both parties calm and rational so that they can make agreements based on facts and reason rather than emotion.
Collaborative Divorce Processes Using Lawyers
Collaborative divorce processes using lawyers share the same goals, but each party has individual legal counsel. In this model, you hire your divorce attorney, and your spouse hires theirs. You let both lawyers know you’re interested in pursuing collaborative divorce proceedings.
Both parties and their respective collaborative family law attorneys sign a contract stating their intention to use cooperative dispute resolution techniques, rather than combative tactics, to negotiate the gamut of divorce issues. We call this contract a “participation agreement.”
Now, over a series of scheduled meetings, you’ll come together much the same as you would in mediation, but your lawyers are there to represent your best interests. While things may get more contentious than in mediation (but not always), divorce attorneys also know your goal is to stay out of the courtroom, minimize conflict, and (again) minimize the negative impact of divorce on children’s wellbeing.
Scenarios When Divorce Collaboration Using Lawyers Is Best
Here are some scenarios when you may want to consider using individual lawyers for a collaborative divorce process.
You don’t completely trust your partner
If you don’t trust your partner or s/he has a history of being manipulative, hiring your lawyer may be the way to go. Your lawyer supports your process as you gather the paperwork, documentation, and other evidential items required to move forward. And their office will handle all of the legal forms necessary for divorce proceedings.
If you suspect your partner is hiding assets, leading a dual life, or you’re wary of being able to negotiate without your advocate, lawyer-facilitated divorce collaboration is ideal.
You are the one who wanted a prenuptial agreement
If you led the prenuptial agreement charge, odds are you had family assets or personal acquisitions you wanted to keep out of the communal pot. Despite their role in the legal marriage arena, prenuptial agreements are not always the most secure documents. If there’s a prenup to protect, your lawyer knows how to manage that while working collaboratively with the other side.
You run your own business
If you didn’t take the necessary steps to protect your business interests from the marriage’s legal “community property” state, it could be at risk. If you aren’t careful, your spouse could have all kinds of legally sound grounds to maintain partial ownership of the business or force you to buy them out to continue running it as your own.
Tensions or anger levels are elevated
If the anger or tension levels are at an 8 – 10, and you fear this may threaten the mediation process, a collaborative divorce with attorneys is a good middle ground. This allows you both to honor the mediation and minimal conflict goals you share while minimizing the risks of arguments or old energy that may find its way into the picture without your own representatives there to help keep you both in check.
There are atypical complications (abuse, mental illness, addiction, etc.)
If your spouse (or yourself) has a history of domestic violence, abusing your children, or addiction, lawyer-led divorce collaboration ensures you and your children’s wellbeing and protection are the top priority. However, it supports the two of you moving forward with as much integrity and minimized tensions as possible. These scenarios may entail different protocols, documents, or agreements around child custody and visitation agreements. If any of these pertain to you, we recommend meeting for a consultation with a family law professional before making any agreements with your spouse around mediation or collaboration. Your attorney can help you determine which option is the wisest and safest.
Contact the Law Offices of Gerard Falzone to learn more about your divorce proceeding options. My goal is to facilitate your divorce with the least amount of stress, anxiety, financial burden, or negative outcomes possible. I’m happy to hear your side of things or meet with you both, to determine whether mediation or lawyer-led collaborative divorce proceedings would be best. Contact me to schedule a free consultation. (510) 521-9500.