Unlike an attorney, a mediator cannot provide legal advice. However, neutral legal information, such as what one might find reading a statute, can be provided. If negotiations reach an impasse, skilled mediators employ techniques to assist in breaking the deadlock, finding common ground and guiding the parties to win-win agreements.
This differs in some ways from Collaborative Divorce, in which each party is represented by his or her own attorney (also trained in conflict resolution techniques). At the same time, both approaches share many of the same advantages over traditional litigation. To get a sense of these advantages, please take a few minutes to watch this Collaborative Divorce Video, as it captures so well the experience and benefits of working together amicably. If you can, persuade your spouse to watch too.
How it Works
Mediation works, in part, by helping people to see past their positions to their underlying interests. For example, one spouse might come into mediation feeling that equal parenting time is absolutely necessary and not negotiable. Mediation might help to reveal that he or she is afraid of losing connection with the children. Since there are many ways to ensure a rich and meaningful relationship with children is maintained (or even enhanced), identifying the underlying issue opens creative possibilities the parties hadn’t considered. Conversely, a spouse might arrive in mediation believing it absolutely necessary to receive no less than $X per month in spousal maintenance. In mediation, he or she might discover the underlying concern is fear of not having enough financial resources to meet basic needs. Since economic security can be achieved in many ways, with or without spousal maintenance, possibilities are similarly opened through recognition of the underlying interest.
In my experience, the key to resolving conflict is in helping people to see through each other’s eyes. They don’t need to agree about any particular truth. It’s alright to have completely different world views so long as those differences don’t breed mistrust. When people understand where the other is coming from and get that the other – from where he or she sits – is acting in good faith, everything changes. When each spouse can truthfully and authentically say to the other, “What you’re saying makes sense. I don’t necessarily see things that way, but I get why you do,” conflict melts away and solutions to issues that had seemed intractable arise naturally in the course of ongoing discussions.
As is true anytime spouses are working together in good faith, agreements can be as creative as the parties wish. Often their solutions go far beyond the bounds of anything a court would consider, or even have jurisdiction to impose, on its own. When appropriate, mediators may refer the spouses to other professionals for counseling on parenting issues, asset valuation or tax concerns.
Collaborative Divorce and Mediation Compared
Many of the mediation principals and processes discussed above are incorporated into Collaborative Divorce as well. The main differences are that in Collaborative Divorce:
- each spouse is represented by an individual attorney who is specially trained in the collaborative process;
- parties can obtain individualized legal advice from their respective attorneys;
- a team approach is utilized that more easily integrates child specialists, divorce coaches and financial planners; and
- The attorneys draft and review legal documents.
Some spouses feel more comfortable with the collaborative approach because it provides the added support of a lawyer for each party who can advise and protect his or her client and also prepare and review legal documents. The input of other skilled professionals, such as child specialists, divorce coaches and financial planners is seamless in the collaborative framework, and this can be extremely helpful in resolving particularly difficult conflict. However, when the level of conflict is not extreme and/or the issues less complex, mediation may achieve an equally high quality result in a more cost effective manner.
In my experience, Collaborative Divorce – with its ability to seamlessly bring the support of attorneys, therapists and financial planners inside the divorce process – has the greatest capacity to produce outstanding results. Still, not every family needs this level of support. The bottom line is obtaining a great result. Saving money is, for most families, important. At the same time, since parents will be connected for the rest of their lives – through graduations, weddings and grandchildren – achieving win-win settlement yields dividends that far exceed whatever expense may be incurred.
Keep in mind that when divorce is done well, children benefit most of all. When both mother and father can be at birthday parties, school activities, graduations and weddings – with ease and comfort – and when the children themselves can love freely, without any sense of having to take sides, the benefits (to everyone involved) are beyond measure. Therefore, my view is it makes sense to invest in Collaborative Divorce if it is likely to result in a significantly higher quality settlement than mediation.
When the level of containment available through Collaborative Divorce is not necessary, mediation will lead to excellent results. Some couples may even be able to negotiate quality settlements on their own, perhaps engaging attorneys only to prepare documents and make sure all agreements are faithfully executed.
I strongly recommend making sure all settlement documents and court pleadings are prepared properly. All too often, a client comes to me for help fixing those documents and pleadings that did not properly reflect the terms of the agreement he or she thought had been reached. This can prove difficult, expensive and sometimes impossible. Therefore, doing it right the first time is really important.
Whichever method is employed, the financial and emotional costs of a mediated or collaborated divorce are likely to be substantially less than those of a conventionally litigated divorce, and the benefits of these approaches are profound. When people retain control over the final settlement by negotiating its terms, they feel a sense of satisfaction and ownership over their agreement. Even if they’ve had to make difficult concessions, they’ve chosen where to give and where to hold firm. As a result, the spouses are unlikely to wind up in court seeking to enforce or modify the terms of their agreement.
Spouses who negotiate win-win settlements feel good about each other. As a result, they are well positioned to share parental responsibilities and fully participate in the lives of their children. Even after the children are grown, the benefits continue as they will find it easy to be present at graduations, weddings and in the lives of their grandchildren. The children have been protected from the contentiousness of adversarial divorce which can otherwise leave lasting scars. And such positive approaches typically take less time and cost far less than full blown litigation.
Both mediation and Collaborative Divorce can also be used in other types of family law cases and if issues arise after the divorce is final, regardless of whether the original case was negotiated or litigated.