COLLABORATION & MEDIATION
If you are considering a divorce, but your stomach turns at the thought of going to court, there are other options. Alternative Dispute Resolution methods have become increasingly popular. Many couples seek these methods to amicably end their marriage and remain out of court. Two popular Alternative Dispute Resolution methods are Mediation and Collaboration. Neither is necessarily going to be the best or worst choice in all cases. Which approach to use is determined by the unique circumstances of your case, your individual preferences, and the availability of good mediators or collaborative attorneys. Below are factors to consider in choosing the right approach for you.
As one of the newest forms of voluntary dispute resolution in family law, the Collaborative Process requires that each party have their own attorney. The attorneys work together to help their clients come to a settlement agreement through cooperative techniques rather than adversarial strategies. Upon commencing the process, both parties agree that there will be no litigation during the negotiations. That being said, at this time, all parties enter into a “Participation Agreement” so that, should the couple choose to litigate, it is understood that the spouses are required to hire new representation as they are not allowed to use the same Collaborative attorneys in order to litigate. In most Collaborative divorces, there is also a neutral facilitator who usually has a mental health background and a neutral financial professional who could be a forensic accountant or a financial planner.
In a Collaborative divorce, the couple works with this team of professionals to come to an agreement for their divorce settlement. The goal is for the couple to have a team of professionals whose primary goal is to help them come to an agreement in a peaceful and non-adversarial way while still having legal representation.
The Stages of Collaborative
1. Initial Steps: This stage is the start of the process, when each spouse hires their team, beginning with the Collaborative-trained attorneys. They will then need to select the other Collaborative professionals they want to include who will act neutrally throughout the process. The attorneys usually choose the other professionals, or the parties can choose them. The Collaborative team must be approved by the spouses prior to commencing the process. Specifically, they must approve the Collaboratively-trained professionals that will play the following roles during the process:
The Collaborative Divorce Attorneys: represent the interests of their client while negotiating an agreement that meets the needs of both parties and their children. They work with the other attorney and team members to help the spouses agree to terms, draft a settlement, and, ultimately, file the necessary documents in court.
The Collaborative Divorce Coach/Facilitator: usually filled by a licensed mental health professional whose goal is to recognize and prioritize the needs of each person and facilitate communication between the parties. They are the neutral professional in the process that ensures all parties and their interests are being considered and that the process runs as smoothly as possible. Due to the potentially chaotic nature of the divorce process, the Coach/Facilitator is essential in fostering an atmosphere of calm, respect, and efficiency, effectively managing expectations and emotional states accordingly. The Coach/Facilitator is also the professional who primarily helps the clients decide how they will parent and share time with their children.
The Collaborative Financial Specialist: fulfills the second neutral position in the process. The Financial Specialist provides ongoing financial guidance, assisting with planning and budgeting as needed. They are also essential in gathering the necessary information to determine each party’s financial situation. Furthermore, they work to develop potential scenarios for the parties to help them make the most educated financial choices for their future including, but not limited to, the division of marital assets and liabilities, and the calculation of alimony and child support.
2. Information Gathering and Education: The stage where everyone gathers and shares the information needed for the case. This often includes finances, parenting, and legal information. This stage helps set the foundation for the process ahead. It may take one or more sessions depending on what information is provided by each spouse and what further information is needed. This process is governed by the basic rule of the Collaborative Process that everyone will be transparent and that information and documents will be freely shared.
3. Generating Options: This stage is based on a collective understanding of the key elements, which are the important needs, interests, and concerns of each spouse. This allows every professional involved to focus on what matters most to the couple so that each can propose solutions that will work for everyone involved. The goal of this stage is to ensure that all issues are addressed and discussed, and that all options are presented and considered.
4. Building the Agreement: In this stage, everyone is working together to bundle options that address all of the couple’s key elements. Different scenarios are modeled and the couple discusses and adjusts accordingly.
5. Reaching an Agreement: Once everything has been discussed and the couple is satisfied, the Collaborative lawyers will then prepare all of the necessary legal documentation to file in court and finalize the divorce.
Advantages of Collaborative:
Collaborative divorce can be less expensive and take less time than a traditional litigated divorce.
It is voluntary, so it is likely that both parties have the intent to divorce peacefully.
Couples can set their own pace. They are not reliant on the schedules of attorneys and judges.
It provides a safe, non-adversarial environment where both parties can communicate freely.
All of the different members of the Collaborative team work together to assist the couple going through divorce.
The process is confidential so there is a minimal public record.
The success rate of the Collaborative Process is close to 90%
Disadvantages of Collaborative:
If an agreement is not reached and the couple chooses to start the litigation process, per the Collaborative divorce contract, the couple will need to hire new attorneys. This will extend the process and cost the couple more money, which can actually encourage the parties involved to be more flexible and reach an agreement.
In a mediated divorce, a neutral third party, known as a ‘mediator’, sits down with the divorcing couple in a confidential setting and works to help them resolve their issues and come to an agreement. The spouses can either opt to have the representation of attorneys or not. When the spouses represent themselves, it is known as pro se. The parties then choose to participate together in one room or in separate rooms with the mediator going between them, such as in the case of a caucus. The mediator doesn’t make any decisions for the couple, but is there to guide the couple through the process and help them communicate effectively so that the settlement can be agreed upon peacefully and efficiently.
There are several ways by which a couple can enter mediation.
They can either voluntarily agree to attend mediation together,which is the process described above, or be requested via court order or statutory requirement. The last two are considered mandatory since they are being asked to attend mediation meetings either by law or court order. Texas does not require a mandatory mediation session as part of the divorce process but one can be ordered by the judge, if deemed appropriate. It is important to note that “mandatory mediation” does not mean that the couple has to arrive at any particular resolution by the end of the session.
The only requirement is that they attend and make a true effort to come to a resolution. Mandatory mediation may be required for several reasons, but more often than not it is used to resolve issues surrounding child custody such as visitation and/or child support.
Mandatory mediation may also be requested in order to discuss issues regarding spousal support or division of assets. If someone does not attend a mandatory mediation session, they may be held in contempt of court, which is punishable by a court fine and/or time spent in jail. In cases where there is domestic violence involved, the mediation session can be held as a caucus where the mediator meets with each spouse separately, as explained above.
The Stages of Mediation
1. Introduction Stage: In the first stage, the mediator works with both parties to set the stage and lay a foundation for the rest of the process. The mediator will ask questions and gain some background information about the divorcing couple’s situation in order to determine the next best steps to take that will optimize the chances of them reaching an agreement. It is important that both parties have open and clear communication to bring light to their issues and become aware that work will be needed. This introduction will allow the mediator and both parties to come up with an agenda for the rest of the mediation process.
2. Information Gathering: In order for mediation to be successful, the mediator and both parties need to be fully informed, or as much as possible, on all of the facts regarding the case. So, in this stage, all information is put together. Some documents that will be compiled include tax returns, financial affidavits, bank statements, and mortgage documents. The mediator will inform the clients regarding everything they need and the different laws of the state that apply so they have an idea of what to expect. Once all of the necessary information is gathered, the process can move forward.
3. Framing/Brainstorming: In this stage, each spouse works with the mediator in outlining their desired outcomes for the settlement regarding such things as child time sharing, property division, etc. From this, the mediator can start putting together settlement options that are in accordance with the person’s interest. There may or may not already be agreement between the spouses and what they both want. Depending on the level of agreement or disagreement, the mediator may choose to meet each spouse individually or together.
4. Evaluation/Negotiation: Once the mediator has helped the spouses frame their issues and interests clearly, it is time to work on compromises to reach a settlement. The mediator will present the different options and the spouses will discuss and evaluate until the options are narrowed down to those that they agree to. It is up to the mediator to problem-solve and be prepared with options that meet each spouse’s interests as best as possible.
5. Conclusion: Once the settlement has been agreed upon by both parties, the mediator will draft a tentative agreement for their review. If the issues of the case are simple, the mediator may put together a memorandum outlining the settlement which the spouses will sign before leaving the mediation session. The memorandum will list all of the essential points and can be used as a basis for the formal settlement that will be filed with the court as an uncontested divorce. Many mediators will submit an agreed upon settlement to a reviewing attorney before it is finalized.
Advantages of Mediation:
Mediation is less costly because there are no court costs and, if the parties are cooperative, the only fee is the mediator’s rate which is usually split between both parties.
The client can still consult a lawyer for legal advice throughout the process.
Mediation is confidential, so there is no public record.
The client and their spouse control the process, not the court, which eases stress and strain. Mediation allows them to arrive at solutions based on their own ideas of what is fair rather than having impersonal and rigid legal principles imposed on them.
Most mediations end in a settlement of all of the issues in a divorce.
The mediation process can improve communication between a client and their spouse, helping avoid future conflict.
Disadvantages of Mediation:
Mediation does not always end in a settlement agreement. After several sessions, the couple may not settle all of their issues. So they may need to go to court anyway.
If the mediation is voluntary, either party can withdraw from the proceedings at any time.
In a pro se mediation, the spouses do not have any legal representation. Even though the mediator might be an attorney, they are not allowed to give legal advice to their mediation clients as they are not legally representing them. A mediator is a neutral party.
Contact Us Today
To talk about your situation and your options whether selling the home or doing a buy-out with your spouse. Even before the divorce proceedings begin, we can evaluate your financial situation to help you retain a large percentage of your estate or advise you on your new purchase. Call Geni Manning at 469-556-1185 or fill out our Online Request Form.