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How is Using the Collaborative Process Different from a Traditional Separation Process?

Many separating and divorcing couples turn to alternative (we like to call it appropriate) dispute resolution (ADR) methods rather than going to court. Popular forms of ADR include mediation and the Collaborative Process. Both tend to be cheaper, faster, less adversarial, more flexible, and more private than a court divorce. While mediation and the Collaborative Process are similar, there are some key differences. 

Mediation

Mediation involves bringing in a specially trained neutral third party, often a lawyer, to help separating couples resolve their issues outside of court. A family law mediator strives to facilitate an agreement between opposing parties on the primary issues of separation, which will later be submitted in court.  

A mediator guides couples through such common issues as child support, custody, parenting time, spousal support, and division of assets and debts. While mediators may not provide legal advice, they can help couples understand relevant legal consequences. 

Mediation requires both parties to be willing participants. As the process is voluntary, it may be terminated at any time. For mediation to be most effective, it is beneficial to have a base level of trust and good faith between the separating parties, as they will each be relied upon to provide an honest account of their circumstances, including sharing financial statements. 

 

Collaborative Process

A Collaborative Process is similar to mediation because it is a voluntary negotiation process designed to reach a consensus outside the Court system. However, in a Collaborative Process, rather than facilitation by a neutral third party, couples and their team, including lawyers, coaches and financial specialists, meet to build solutions. 

At the outset of a Collaborative Process, each party signs a participation agreement stating they will do their best to reach an equitable settlement and will not go to court. If a final separation agreement cannot be reached, or if one of the parties breaks the participation agreement and proceeds to court, each party must retain new counsel. 

Mediation vs the Collaborative Process

Mediation and the Collaborative Process offer comparable benefits to participants, as they both tend to be faster and more cost-effective than court proceedings. Additional advantages include:

  • Both processes are voluntary, allowing them to be terminated at any time without significant repercussions other than the time and expense of starting over.

  • Compared to court, the informal setting is often less stressful and allows for greater flexibility in finding solutions tailored to each family's unique circumstances.

  • A focus on consensus-building, rather than viewing the situation as "winners" and "losers," minimizes conflict within family relationships and fosters valuable problem-solving skills, especially when children are involved.

  • Both processes are confidential, encouraging both parties to be more open and honest than they might be in a court setting. 

 

Mediation, typically involving fewer participants, can be more flexible and easier to arrange than the Collaborative Process. This simplicity can make the process more efficient and less expensive, with fewer professionals involved. However, it's important to note that mediators cannot provide legal advice and rarely assist with financial planning, and they may not have expertise in creating parenting plans. In such cases, spouses might need external professionals to support their mediation process. Conversely, the Collaborative Process is more likely to result in a comprehensive separation agreement and parenting plan, providing a clearer path toward a better future.

The Collaborative Process also offers the guidance of a lawyer dedicated to looking out for each spouse's best interests throughout the negotiation process. This support can be particularly valuable when a pre-existing power imbalance in a relationship hinders one party's ability to advocate for themselves or when complex issues require expert guidance.

However, the primary drawback of collaborative divorce is that if it fails, each spouse must start over with new legal counsel, incurring additional expenses and delays. Similarly, if the mediator lacks litigation expertise and the mediation process is unsuccessful, the spouses will need to pursue a different approach.

The Collaborative Process - from the Legal Perspective:

 

The Collaborative Process is better than a court-based, adversarial divorce. 

  • No court, and no threat of court

  • No argumentative, accusatory, threatening and EXPENSIVE letters between lawyers

  • Your lawyers work to contain (not inflame) conflict

  • Lawyers use their time to educate, inform and help you effectively problem solve

  • It provides emotional support along with legal guidance

  • Your family's needs, not court requirements, direct YOUR process

  • Court documents are public; your Collaborative separation agreement is private

The Collaborative Process - from the Financial Perspective:

  • Timely sharing of financial information - no expensive measures to force disclosure

  • Helps you understand your current and future financial situation 

  • Guides you to choose the best financial options for a strong future 

  • Reduces legal costs and preserves your assets

The Collaborative Process - from the Mental Health Perspective:

  • Minimizes conflict and stress

  • Creates a cooperative environment where everyone's needs are heard 

  • The negotiation process is flexible, to suit the needs of each unique couple and family 

  • Emphasizes the well-being of children

  • Gives you more control in both process and outcome

  • Paves the way for respectful relationships after separation

  • Gives you hope and prepares you and your family for new lives

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