Using Mediation or Collaborative Divorce

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More and more divorcing people are choosing mediation or collaborative divorce because both processes enable people to negotiate agreements on their own terms, without court intervention. Divorce mediation and collaborative divorce remove the uncertainty and unpredictability of going to court and asking a judge to decide one’s future.

If you are considering or have already decided to use mediation or the collaborative divorce process, here are some suggestions on how to optimize the effectiveness of either process and ultimately, make your divorce easier.

1. Choose your team wisely

The ease and success of divorce mediation and the collaborative divorce process often depends on the people who are involved. If your spouse and his or her attorney are truly incapable of negotiating and/or compromising, divorce mediation or collaborative divorce can easily fail. If a mediator lacks the skills necessary to move mediation productively forward, the mediation can get permanently derailed.

If you are thinking about mediation or collaborative divorce, take an honest look at yourself and your spouse. Ask yourself if you are willing and able to negotiate and compromise with professional help. If the answer is “Hell no!” consider your alternative: going to court and giving a judge, who knows little about you or your circumstances, the power to make lifelong and legally-binding decisions about your future.

After you’ve considered the court process, ask yourself again, “Do we have the willingness and ability to negotiate and compromise with professional help?” If your answer is still “Hell no!”, then mediation or the collaborative divorce process may not be a viable option at this time. However, I have seen incredibly obstinate and insolent spouses successfully negotiate divorce settlements with the help of gifted professionals, which leads to my main point. If you are using mediation or the collaborative divorce process, choose your team wisely. It can mean the difference between wasting enormous amounts of time and money and a successful divorce settlement.

2. Understand the roles of your team members

Sadly a lot of people don’t understand the roles of a mediator and/or collaborative team members. It is essential that you do. A mediator is a neutral third party whose role is to help facilitate the voluntary resolution of issues presented in mediation. A mediator may also prepare the legal documents necessary to memorialize mediated agreements and legally process a divorce, if you so choose.

A mediator is not acting as a judge in your case and it is not his or her job to make legally binding decisions. However, in mandatory child mediation, California Superior Court child custody mediators may make recommendations to the court in child custody cases. These recommendations can be adopted by a judge and made legally binding orders or judgments. Some mediators are therapists and, while I believe their therapeutic expertise can be helpful in mediation, I do not believe it is a divorce mediator’s role to provide therapy to either or both spouses during divorce mediation.

Collaborative professionals are not acting as judges and do not make legally binding decisions in divorce. The roles of each of the collaborative professionals on a team differ, but their overarching role is the same. They are there to help divorcing spouses voluntarily negotiate agreements that fully and finally resolve all divorce issues without court involvement. If you are contemplating or using the collaborative divorce process, please research the specific roles that collaborative lawyers, coaches, financial advisors and child specialists perform.

3. Prepare, prepare, prepare

If it is your intention to use mediation or the collaborative divorce process to resolve all of the issues in your divorce, prepare for it like you would if it were a final exam. If you haven’t already, complete each of the three steps I suggest here and determine these things. Your ideal outcome, satisfactory outcome and bottom lines for each of the issues you seek to resolve in the mediation. Lastly, develop a strategy for the divorce mediation that takes into consideration all of the relevant variables in your case, including your worst fears and desired outcomes. Have all of this information available and ready during mediation or your collaborative divorce meetings.

4. Establish ground rules for the process

Mediation is not a regulated process. As a result, it is almost impossible to explain how your mediation will proceed. The collaborative divorce process also is not regulated. However its creators memorialized their model procedures, which many professionals use today. That said, because the collaborative model is still relatively new and all of its principals not strictly adhered to, there are an infinite number of ways a collaborative divorce may be handled. For these reasons and others, in your initial meetings with a mediator or your collaborative divorce team, discuss and establish ground rules that will be used to guide you successfully through the process.

5. Consult with an attorney

Mediation enables you and your spouse to work directly with a mediator without hiring attorneys to participate in the process. If you do this, you should still hire a consulting attorney to discuss and develop your strategy and the decisions you are contemplating. You may be choosing mediation in an effort to keep costs down. That’s fine. But be sure to consult with an attorney so you understand the ramifications of your choices and ensure the agreements you are contemplating will accomplish your intended goals.

6. Ink the deal

In order for agreements you reach in mediation and the collaborative divorce process to become legally binding orders or a judgment, you need to get the agreements in writing and signed by you and your spouse. If you and your spouse reach agreements that you want to become legally binding, be sure to get them in writing and file the appropriate documents with the court to make your agreements enforceable orders or a judgment.

If you are getting divorced in California and would like me to help make your mediation or collaborative divorce easier, please hop over to this page and complete the form provided so we can connect.

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This article is not legal advice. You should consult an attorney if you have legal questions that relate to your specific divorce.

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