Modern Family Law Views – Is Collaborative Divorce Just Mediation in Disguise?
January 14, 2015
This slightly provocative question legitimately arises from the many similarities between the process, approaches, and techniques used in both collaborative divorce and mediation cases. Indeed, both focus on information gathering, goal identification, and option development before solution. Both use interest-based approaches and focus on client self-determination as a guiding principle. Both provide confidentiality and the flexibility to include other professionals within the process. And both rely heavily on active listening, reframing, and emotional acknowledgments. This might lead some to say that Collaborative Divorce is just like mediation, only directed by the collaborative counsel instead of the mediator(s).
Several significant distinctions exist, however, that can make a big difference in some cases. First, Collaborative Divorce has an explicit contract provision that requires full disclosure and makes the collaborative counsel guardians of this aspect of the process. Mediation, in contrast, is predicated on full disclosure but generally has no formal enforcement mechanism or safeguard built into the process. Second, Collaborative Divorce prohibits simultaneous litigation. Mediation sometimes encourages the parties to refrain from litigation, but usually, no explicit requirement exists, and indeed mediation often occurs simultaneously with litigation. The presence or absence of simultaneous litigation has a profound effect on the leverage, options, and type of discussion present in the process. Third, Collaborative Divorce includes as a specific step for the identification and inclusion of outside professionals, beginning with coaches for the parties to deal with communication, mental health, and emotional issues. Again, mediation certainly can incorporate this aspect, but typically does not as a routine step in the process. The outside coaches (and other professionals) can be especially helpful in cases with high stress, difficult personalities, and/or strong emotional issues – or with clients who just need a little education on effective communication. Finally, Collaborative Divorce routinely and consciously uses a team approach. In this way, a collaborative case farms out different issues to different independent and neutral professionals. Legal issues are handled by lawyers, financial issues typically are addressed by financial professionals, and parenting and emotional issues are usually managed by mental health professionals. Moreover, other issues, such as refinance or sale of a home, health issues, and special needs children, typically receive their own specialized professional attention as a matter of course in a Collaborative Divorce. This can be a big advantage and relief for already overwhelmed clients.
Of course, all these differences can come with some additional process costs. In many cases, the added benefit is worth any extra fees, and helps get issues addressed in a way that ultimately can be more comprehensive, satisfactory, and efficient. Good and experienced attorneys can help their clients make informed decisions, and choose for themselves whether these fundamental differences between Collaborative Divorce and mediation present desirable benefits for the clients in a given situation.
In conclusion, even though many similarities exist between mediation and Collaborative Divorce, important differences may make Collaborative Divorce more appropriate in some cases.
© 2015 by Hadrian N. Hatfield
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