The decision to get divorced can be one of the most difficult and traumatic experiences two people may go through. When one thinks of a divorce, they may picture a courtroom filled with attorneys arguing. However, what most people do not realize is that there are several ways to go about the divorce process. Over the last decade, the divorce processes of mediation and collaborative divorce have grown in many jurisdictions to be a cost
The Traditional Divorce Process
The traditional divorce process is what is often depicted on television shows and in movies. It involves a long court process that is often very adversarial. The process involves one spouse bringing a lawsuit against the other. After the suit is filed, the parties engage in a process that involves petitions, motions, discovery and other formalities required by the court. While this process may be useful in some situations, such as when the parties see no compromise in sight, there are also some drawbacks. The traditional process can sometimes be so contentious that relationships are ruined completely. This can have an effect on other important discussions like child rearing going forward. Additionally, litigation can leave the parties emotionally and financially drained. While the process will typically always end in a finalized plan moving forward, and most cases are settled out of court with a divorce agreement, the cost will likely be significantly greater than mediation or collaborative divorce.
Mediation is often seen as the less adversarial approach to divorce. The process involves the two spouses meeting with a neutral third-party who is trained in the skills and techniques of facilitating an agreement, (a mediator). In general, the process is typically faster, less hostile and less expensive than the traditional approach. Because the mediator is trained in both communication skills and the law, even the most complex challenges may be able to be resolved through the use of mediation. However, mediation has some drawbacks. One of the primary concerns with entering into mediation is whether the parties are negotiating from equal positions. Unfortunately, some divorces are the result of mental and physical domestic violence. In these situations, mediation would likely result in an unfair settlement as one party may have possible mental leverage over the other. Additionally, a mediator cannot force an agreement that the parties are not willing to agree to and cannot issue a court order. If there is an emergency court order needed or one party is not willing to agree, the only recourse is to file in court for divorce utilizing the more traditional method.
Collaborative divorce is a process that has some of the features of the traditional process, with a less adversarial approach like mediation. Both parties retain their own representation. However, instead of the divorce proceedings being left up to a judge, the goal of a collaborative divorce is for the parties to reach an agreement through the help of their attorneys. The process involves the two spouses and their attorneys engaging in a free and open conversation about their preferences, wants and needs. The conversations are completely confidential and allow the parties a voice in the process without the expenses and turmoil experienced in a judicial proceeding.
Typically, collaborative divorce does not include a neutral party such as an arbitrator or mediator unless the parties agree to it. Instead, a conversation is had between the parties where they openly and freely share their thoughts and information. Once the parties are able to agree to settlement terms, the attorneys will draw up an agreement that will be signed by both parties. The agreement could be brought before a judge who will confirm that the parties entered into the agreement in their full capacity and have no reservations.
Overall, collaborative divorce has been found to be more affordable and efficient than the traditional divorce process. Additionally, it is much more flexible than the traditional divorce process. However, there can be some disadvantages to the collaborative divorce process. For example, if the parties are unable to work together, the collaborative divorce process may be a waste of time. It is important that the attorneys analyze the case and the parties before entering into a collaborative divorce participation agreement.
The divorce process can be emotionally draining. When deciding which procedure for divorce is right for you, contact an attorney who is experienced in the various approaches to obtaining a divorce. An attorney can analyze your situation and recommend the process that will work best for you. If you have questions about the best approach for you and your family, contact Heather A. Fig, Attorney at Law, PLLC. Heather Fig is an experienced litigation attorney in the area of family and divorce as well as a mediator for over 15 years. To schedule a consultation, call our office at 631-419-6111 or fill out our contact form.