If you know anything about divorce, then you know far and away the most expensive way to divorce is a highly contested litigated divorce.
Sometimes there is so much animosity and distrust, and there are so many contentious issues, that there’s simply no way to reach a mutually acceptable agreement.
In these situations, a fully contested divorce may be the only option.
But for many other couples where the flame has simply gone out, they’ve grown apart or want different things in life, there are other options that are not only cheaper but offer other attractive benefits as well.
For these couples, mediation or collaborative divorce might be the perfect solution to help them resolve their issues and move forward with their lives.
How mediation and collaborative divorce are different
In mediation, instead of allowing a court to decide issues, a couple seeking a divorce works with a neutral mediator who helps both sides come to an agreement on all the outstanding issues.
The mediator is typically a family law attorney, but that’s not always the case. It’s important that your mediator is well versed in the divorce laws in your state.
The mediator must be a neutral professional and both spouses must be willing to work toward compromise for a mediation to be successful.
The mediator does NOT represent either spouse. I really can’t emphasize this enough.
The mediator’s job is not to protect you from being taken advantage of. Their role is to facilitate a mutually acceptable agreement.
For these reasons, I always recommend that each spouse retains their own consulting attorney.
You can use your consulting attorney as much or as little as needed. At the very least, have your consulting attorney review the final marital settlement agreement prior to signing. Your consulting attorney can also act as a sounding board to help you prepare for divorce mediation sessions.
In a collaborative divorce, both sides commit to work out a divorce settlement without going to court.
But instead of retaining a single neutral third party, collaborative divorce is more of a team approach. A full team can look different in different parts of the country.
Each spouse retains their own collaborative attorney and divorce coach, and there is a neutral financial specialist.
The attorneys should have specialized training and experience in the collaborative divorce process.
The divorce coach is a mental health professional. Their role is not to be your therapist or deal with marriage counseling. Rather, a divorce coach helps with communication challenges and assists with developing a parenting plan.
The neutral financial specialist is a Certified Divorce Financial Analyst. Their role is to help gather and organize the financial information, prepare financial disclosures (Assets and Debts, Income and Expenses), and act as a neutral facilitator.
The financial specialist also helps offer creative options and evaluate the short and long-term financial and tax implications.
All members of the collaborative team must sign an agreement committing to resolving all disputes without court intervention.
Either spouse can terminate the collaborative process at any time, but the professionals cannot go to court. Basically, if a collaborative divorce fails, you will need to start from square one again and neither party can use the same attorneys to do so.
Parties commit to sharing information freely and openly instead of using the expensive, and sometimes lengthy, discovery process.
Discovery is the legal process for obtaining information. It includes requests for production of documents, interrogatories, subpoenas, and depositions.
It’s hard to do justice in describing just how extensive and expensive the discovery process can be.
Let’s just say that I’ve received tens of thousands of pages in response to discovery requests. Just imagine how long (and expensive) it would take to review boxes and boxes of documents.
What is co-mediation
Co-mediation is a variation of mediation. With co-mediation, you would work with a neutral attorney mediator along with another neutral professional. For instance, you might have a neutral Certified Divorce Financial Analyst to help with the financial issues and/or a neutral mental health professional to help with communication and co-parenting issues.
Co-mediation can be a great option if you have a complicated financial situation or need additional support. It’s often easier to facilitate an amicable divorce if you have two neutral professionals on the team. And, in my experience, the cost tends to be similar to mediation because the process to the finish line is smoother.
How mediation and collaborative divorce are the same and the benefits you will reap
Both mediation and collaborative divorce offer several attractive benefits for divorcing couples. They share several things in common that should be considered if couples have enough trust between them to pursue either of these options.
Because there is a lot less fighting between both sides, it will result in a better long-term, after-the-fact relationship with your spouse. You may not want to have anything to do with your spouse after a divorce, but this leaves the door open to that possibility.
Where this is especially important is when children are involved.
You may not want a relationship with your spouse, but as parents you are bound together by your children for the rest of your lives. You will need to make decisions regarding all sorts of things while they are minors, and that will carry forward to other major life events even when they are adults.
Leaving communication open and civil eases your children’s stress and while the divorce will be hard on them, this is a much more peaceful way to proceed.
You cannot overlook the financial benefits of mediation or collaborative divorce either. In a fully contested divorce, you could be out-of-pocket tens of thousands of dollars and you might still essentially wind up in the same place as you would using either of these methods.
While there are expenses involved in retaining a mediator or collaborative divorce attorneys, you can rest assured you will keep more of the money you’ll need to move forward with your life when all is said and done.
The total average cost of mediation is between $5,000 and $10,000. Some may charge by the hour while others may charge a flat fee. You’ll need to shop around a bit as part of your due diligence.
Using attorneys in a collaborative divorce will be more expensive, but overall still much less than in a contested divorce.
You’ve heard horror stories of divorces that drag on for years. Few things in life will put a quash on your future like a surly divorce proceeding that drags on for months and months.
With mediation and collaborative divorce, issues are resolved much quicker and you can start looking forward to single life sooner when you are able to compromise and shorten your issues list as quickly as possible.
Both mediation and collaborative divorce are all about solving problems and building agreements between both sides, instead of attorneys trying to gain an advantage and win something for their client.
Courts love mediated divorces. Because all issues are already resolved, couples can usually get their divorce finalized in a matter of weeks, as long as any state-level mandatory waiting periods have been met.
Another important thing to consider is that mediation and collaborative divorce are much more private than a divorce that is litigated in public. You work out issues behind closed doors and while a settlement may still need to be approved publicly in a court of law, overall there is a much higher level of discretion involved.
As an adjunct to this, you also are able to retain much more control than when your divorce case is heard in front of a judge. You get to decide what is important and what you are willing to concede as opposed to a judge who will listen to both sides testimony and then possibly make decision that you will not agree with.
Here’s another key benefit. Couples who go through mediation or collaborative divorce have a higher degree of compliance with the terms they agree to after the fact. This is because they have an active say in the agreement they draft and there is much less resentment, if any, than when being told what to do by a judge.
Mediation and collaborative divorces also tend to produce more thorough agreements. With the lines of communication left more open, there is an ability to create a framework that more closely meets the unique needs of a family’s individual needs.
This might include how certain children’s activities are paid for, what happens to the family pet, how a child might be introduced to a parent’s new boyfriend or girlfriend, and so forth.
Don’t under estimate the convenience factor as well. With mediation or collaboration, you decide when you want to meet and where. In a contested divorce, you are given a court date and you will meet at the court house whether it works well for you or not.
If you or your spouse live or work far apart geographically, sometimes online mediation may take place as the ultimate form of flexibility.
Finally, mediation and collaboration allows for a lot more creativity when it comes to crafting an agreement. When you are not bound by the terms and limitations imposed by a court, you can develop alternative solutions that fit well for both sides in a non-traditional way.
When mediation or collaborative divorce may not be appropriate
While there are a number of benefits, at times mediation or collaboration may not be the right path for some spouses.
When one spouse is intimidated by the other, it creates an uneven playing field. Even with the assistance and protections afforded by a mediator or an attorney, a spouse may not feel comfortable speaking up for themselves to resolve their differences.
Mutual respect must be present for this type of process to work.
In addition, when domestic violence or substance abuse is present, mediator or collaborative might not be appropriate. Again, there must be a willingness to see the other party as an equal but abuse in any form makes this a difficult proposition at best. There may not be enough protections built in to ensure a fair process.
High asset divorces may also complicate matters. High assets means high stakes. For this reason, there’s a common misconception that mediator or collaborative divorce may not be appropriate. I couldn’t disagree more.
For mediation or collaborative divorce to work, it doesn’t that there aren’t any disagreements or that everything is peachy. It simply means you and your spouse are committed to working together to reach a resolution. This requires a willingness to remain flexible and compromise.
A litigated high asset divorce can get extremely expensive. Mediation or collaborative divorce is likely a more cost effective option. And having a neutral financial specialist can be unbelievable helpful for leveling the financial playing field. Of course, transparency is a must for this to work.
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