Why should I choose collaborative law if I can just hire an attorney to negotiate on my behalf?
When people hire attorneys in a conventional divorce, they are hiring an advocate whose stance is adversarial. Both lawyers work for months in anticipation of trial, where a judge decides how the marital assets get divided, what parenting plan works best and how much child support and maintenance should be paid. Surprisingly, most cases settle on the eve of trial, after clients have paid their lawyers exorbitant amounts of money to prepare for litigation. Collaborative law seeks to avoid that unnecessary expense by avoiding litigation altogether. While a collaborative lawyer is hired to act as an advocate, the goal is settlement. The adversarial nature of litigation is removed from the process, creating a far more efficient environment for reaching a resolution.
Is mediation for everyone?
No. Mediation will work only if both parties are committed to resolving their differences amicably. That doesn’t mean that you and your spouse have to compromise on every issue. It just means that you both must be willing to listen to one another with the goal of resolving your differences peacefully. Each spouse must also feel confident enough to speak up for themselves about their own interests. In mediation, the facilitator is a neutral third party who cannot take sides. Even if the mediator is an attorney, he or she is not ethically permitted to give any legal advice.
What if I have legal questions about an issue that comes up in mediation?
Where as a mediator can describe the parameters of the law, he or she cannot give any legal advice. If a legal question arises during the course of the mediation, the parties can decide to consult their individual attorneys or hire a neutral attorney to draft an opinion on the state of the law with regard to that particular issue.
Can my spouse and I consult our accountant about how to best divide our assets?
Yes. In both collaborative law and mediation, parties can include non-attorney specialists to help inform their decisions. Not only are financial specialists frequently asked to participate in collaborative cases and mediation, but often couples with children seek assistance from mental health professionals as well as family and communication specialists.
Is mediation or collaborative law binding?
Nothing is binding until both parties sign a Separation Agreement. The processes itself is completely voluntary. However, in the collaborative setting, you and your spouse will be asked to sign a participation agreement with your attorneys and any other participating professional. The participation agreement provides that if you or your spouse are unable to reach a settlement, your lawyers must withdraw from the case and help you find new litigation attorneys.
What is a Separation Agreement?
A Separation Agreement is a binding contract between you and your partner that defines how you will distribute your joint assets and liabilities, how you will parent your children, and how much support will be paid, if any. It is the representation on paper of decisions you reach through mediation or through the collaborative practice. If you and your spouse have reached agreement through mediation, I will encourage you to seek individual legal counsel to ensure that you both feel confident with the decisions you made and that the Separation Agreement accurately reflects your best interests.
Once my spouse and I sign a Separation Agreement, are we officially divorced?
No. Once you have a signed Separation Agreement, it must be filed with the court, along with other legal documents. Because I am an attorney, I can help you file the necessary paper work along with the signed Separation Agreement.
What are the advantages of mediation and collaborative law over traditional litigation?
The most obvious advantage is that mediation is significantly less expensive than litigation because you and your spouse are hiring only one person, a neutral facilitator, to help you reach agreement. In addition, litigation often takes far more time than mediating your differences or resolving them through the collaborative process. But the most important difference is that couples who chose alternatives to litigation, avoid the stress and contentiousness that often accompanies protracted litigation. By focusing on settling your differences rather than winning a court case, you and your spouse can end your marriage peacefully and if there are children involved, lay the groundwork for a future relationship that does not include anger and mistrust. Finally, you, the clients, are in control of the process. You make the hard decisions regarding the equitable distribution of property, how to structure a parenting plan that meets everyone’s needs, and whether or not support is necessary. The end result is an agreement that represents the best interests of everyone involved and as such, is one to which the parties will likely adhere.
Where can I learn more about collaborative law and mediation?
You can get more details about collaborative law and mediation at collab-law.com.