July 16, 2017
By Carie Silvestri
Critics of collaborative divorce argue that the majority of cases settle before trial anyway, often at mediation, so why risk having to withdraw from the case if a settlement is not reached? Why would any lawyer sign an agreement compelling withdrawal from representation if the case ends up in court (as the collaborative divorce process requires)? For someone who is unfamiliar with collaborative divorce, it may seem like a “kumbaya” process with more risks than rewards. However, a collaborative lawyer will tell you that the process not only works, but that results often far exceed what could be expected at the best mediation.
While the courts may require parties to attend mediation before trial, the collaborative divorce process remains voluntary and cannot be court-ordered. And while appointed mediators are required to undergo specific training and meet minimum qualifications, there are no statutory training requirements for collaborative law attorneys. Despite these differences, the dispute resolution skills of mediators and collaborative divorce attorneys remain the same: interest-based negotiation.
One of the primary differences between a collaborative divorce case and a litigated case that settles at mediation is the focus on the process. In a collaborative case, the parties are committed to settlement from the beginning. Because they agree not to use the court system to resolve their disputes, the five-hundred-pound gorilla – the threat of litigation – is removed. The collaborative divorce process provides a private, safe environment in which the parties identify the issues to be negotiated utilize the expertise of neutral experts (in family law cases, a financial expert and a mental health expert with training as a parenting coordinator are typically included in the process), evaluate their options, and make informed decisions regarding the outcome of their disputes.
Collaborative divorce follows a five-step process called the “Roadmap to Resolution.” This Roadmap is discussed at the first collaborative divorce meeting. The parties are given their personal roadmap for the journey; ideally, they know where they are going and what to expect. At the beginning of each subsequent joint session, the attorneys identify where the case is in the process to show the parties the forward movement they are making and to understand that there is order in the seeming chaos. Because the parties are involved each step of the way, they have ownership regarding options and decisions. By contrast, in litigation, the attorneys typically do the majority of the work without clients involvement, simply consulting when specific decisions need to be made.
By contrast, mediation typically occurs after months of battle in the contentious litigation process, after written discovery has been exchanged and depositions have been taken, and after a temporary orders hearing has occurred (and possibly another hearing or two). By the time the parties reach mediation, they have been through the trenches and hardened into positions. The proverbial “damage has been done;” thus the mediator often spends the first several hours working with each party to break down their positions to learn his or her true interests.
Mediation is a beneficial process, as it provides parties an opportunity to openly discuss their concerns in a confidential setting and gives them control over the outcome of their lawsuit. Unfortunately for some, mediation comes too late—after thousands of dollars have been spent, relationships have been damaged, time has been lost, and trust has been broken.
The collaborative divorce process embraces all the goodness of mediation and at the same time implements these positive principles without placing roadblocks that occur due to the combative nature of litigation in the path of resolution. By focusing on the process rather than the outcome, collaborative divorce has provided thousands of families with the opportunity to restructure their families in a safe and secure environment without fear of losing control. As more and more clients choose collaborative divorce, families are moving forward with their lives much sooner, with less expense and collateral damage.
Collaborative Divorce Texas recognizes credentialed collaborative professionals who have demonstrated a commitment to the highest standards of collaborative practice, numerous peer recommendations, many hours of collaborative law training, and substantial involvement within the collaborative law community. Visit Collaborative Divorce Dallas at http://www.collaborativedivorcedallas.net and Collaborative Divorce Texas at http://www. collaborativedivorcetexas.com. to find trained collaborative law professionals in your area.