It all depends on your situation if mediation, or collaborative divorce will be the best decision. In which way to use is subject to the distinct circumstances involving your case, your individual preference, and the access to knowledgeable mediators or collaborative lawyers. Below are factors that could influence your choice.
The primary factors of mediation are:
- Unbiased individual (mediator) aids in negotiations
- mediator has no control in deciding your case
- no necessitation to retain a lawyer or other advisers
- efficient—faster than litigation, and
- less costly—in comparison to litigation.
The primary factors of collaborative divorce are:
- each spouse is represented by collaborative lawyers
- each spouse and their lawyers sign a “no court” agreement (lawyers are required to remove themselves when the case goes to court)
- each spouse and their lawyers negotiate in “four-way” discussions
- lawyers might suggest involving collaborative professionals
- more efficient than litigation, and
- less costly than litigation.
Factors That Favor Collaboration
The want or desire for separate legal representation
When you require the guidance of a lawyer having your back every step of the way, you may discover collaborative divorce a better choice. For instance, your case may involve some convoluted legal or financial matters that you don’t feel capable of negotiating. Or you might feel more comfortable with the notion of having a professional to consult with each turn. In collaborative divorce, the two lawyers assist in every aspect of your case, so this method would address your requirement for representation during the process.
Power disparity in your relationship
When there are underlying dynamics in the relationship with your spouse that leaves one or both of you feeling at a clear disadvantage in discussions about complicated subjects, you might want the additional insulation and structure offered by collaborative divorce. Having a knowledgeable collaborative lawyer on your side can sometimes provide you with more confidence in conveying what’s important to you, even at your spouse’s disapproval. Or when you know you are inclined to “take over” in discussions with your spouse, you may find it useful to have a supportive lawyer there to push you into a respectful silence when required.
Drawbacks to Collaboration
The primary drawback to collaboration is that when it doesn’t work out, your collaborative lawyer is required to extricate themselves, and you have to start from the beginning with a new lawyer and maybe new professionals and advisers. Meaning a lot of cost and delay whereas you get your new lawyer caught up and get new professionals. Many lawyers are vital of collaborative divorce for these reasons. Additionally, many lawyers contest that collaborative law clouds the duty of your lawyer, who is expected to look for concessions and solutions satisfactory to the other side whereas concurrently representing your interests. Obviously, this disapproval ignores the fact that when you have decided to collaborate, you have chosen that it is in your interests to look for mutually acceptable agreements. Other arguments that could be made against collaboration is that since lawyers are more involved in negotiating procedures than they commonly are in mediation, you might be less likely to arrive at acceptable solutions —solutions that are beyond what the law might prescribe (for instance, trading payments for schooling or occupational-training now for a shorter period paying spousal support down the road). One of the benefits of a non-adversarial process is that the law is only a guideline, not a suggestion, and you are free to choose what is going to work for you. The more lawyers are engaged in the process, the debate goes, the less creatively thinking is going to be applied.
Lastly, as in the case of a failed mediation, there is a little risk that a case may become very conflicting when collaboration fails, since there may be a tendency to give up on ever coming to a reasonable settlement. A solution to this issue is to spend time creating an “exit strategy” when it appears like collaboration isn’t working. Nevertheless, this might not always be likely.
Factors That Favor Mediation
Adaptability and management over the process
Mediation is possibly more compliant than collaboration. To begin with, you’ll only need three individuals for mediation to happen: you, your spouse, and the mediator. There is nothing to hindering you from adding other individuals to the process if and should you need them, but you aren’t required to have lawyers—or other professionals—actively engaged in the process.
Mediation is also probably more adaptable than collaboration as it comes down to the procedures you are going to follow. A lot of collaborative lawyers are a part of a collaborative group with their own “protocols”—or rules—that are going to apply to cases managed by members of the group. This could be a good thing, since it decreases the possibility of oversights among the professionals. However, the trade-off is that you might have a lesser amount of input than you would want in how and when things occur in the case. This will not happen in mediation, where you work alongside the mediator on choosing both the process and the matter of your case.
Efficiency and cost savings
Mediation is probably more cost-effective and efficient than collaboration is. Just from a logistical viewpoint, arranging the calendars of 4 or more individuals, with at least two of who are working professionals, is a time-consuming undertaking, one that could add to the expense of the process. Additionally, the active involvement of two lawyers, and maybe other professionals, making the expense almost certain to be higher than a mediation whereas the spouses convene alone with the mediator, even when they consult with lawyers and other professionals every so often.
A couple of states have laws placed to safeguard the confidentiality of statements made throughout a mediation. No laws have been made to safeguard the confidentiality of collaboration. You are going to share lawyer client confidentiality with your own collaborative lawyer; however, the four-way meetings will not be considered “confidential” settlement talks, and the laws safeguarding settlement talks are far from certain. Whereas you can—and should—sign a confidentiality agreement when you choose a collaborative divorce, the binding of such agreements could be subject to concessions. When confidentiality is important to you, and when you’re in a state with tough laws safeguarding mediation confidentiality, you could be better off mediating.
Drawbacks to Mediation
When you can’t come to a settlement through mediation, you might have to start from the beginning, and will have “lost” the money spent for the mediation process. In many cases, your consulting lawyer may not be a litigator, making you start over with a new lawyer for the challenged case that might be your next step. (When you are worried that mediation may not work, you need to be sure you retain a consulting lawyer that can go the whole way with you.)
Additionally, when mediation does not result in an agreement, there is an attraction to completely give up the idea of coming to a mutually reasonable settlement. If so, your case might become highly combative. These drawbacks are somewhat minimal, though, since the expense of mediation is generally so sensible. In addition, you might be able to transfer over to a collaborative process or an additional non-adversarial process instead of going into all out litigation.
Emily Doskow, A. (2013, April 03). Mediation vs. collaboration: Factors to consider in choosing the right approach for you. Retrieved March 24, 2021, from https://www.divorcenet.com/resources/divorce/divorce-mediation/mediation-vs-collaboration-factors-con
Choose the Right Divorce Lawyer in Arizona
Regardless of the choice you make, it’s important you make the best choice for you when hiring a divorce attorney. Remember: The decisions you make now can affect your future. Ultimately, choosing the best lawyer will depend on which lawyer feels best for you and your situation.