Divorce mediation or collaborative divorce? It’s not only about the money. Making your choice strictly based on money can have some serious repercussions and most likely cost more, especially if you end up in litigation.
A great example of this occurred with one of my mediation couples several years ago. Both worked out of the home and had a young child. Both knew that working together to develop a parenting plan was paramount. In order to save money, they elected to proceed with mediation instead of collaborative divorce.
Each hired attorneys, which is fine and not unusual at all in divorce mediation. We encourage spouses to retain counsel to run things by during the course of mediation. In this particular case, both spouses would come back to the next negotiation after consulting with their attorneys and change directions on certain issues. “But my attorney said” became a common statement during the mediation.
Again, there is nothing wrong with a party in divorce mediation consulting with an attorney. Directly quoting that attorney as part of mediation creates a different issue. Particularly if the attorney’s specialty is litigation rather than divorce mediation. Often a litigation attorney is thinking of what position they would take in court, not what the ultimate outcome would be. When clients bring those positions into a mediation it changes the negotiations from being interest based (“This is what I think, and this is why….”) to positional (“This is what I want. End of Story.”)
In my example, as the parties quoted their attorneys their positions hardened. No one was looking for a solution that everyone could live with. Instead, they began arguing about whose attorney was the most knowledgeable or most experienced.
The other thing that happened is that the parties would agree to something in a mediation session and then come back to the next session having changed their minds. This was infuriating to the other party who had relied upon the compromise made in the first session to make a compromise of their own.
Collaborative divorce was designed with those types of scenarios in mind. The collaborative divorce team receives specialized training to help facilitate negotiations. The attorneys encourage the parties to express their desires and explain why they seek a particular outcome. Rather than putting forth only one take it or leave it position, the team works together to generate multiple options to the most difficult problems. Financial neutrals make sure that everyone understands the financial implications of any decision.
Another benefit of the collaborative divorce approach is having a divorce coach. The divorce coach, interviews both spouses prior to the negotiation. This helps the coach gain insight into the behaviors and tendencies of each person. The coach learns what triggers one spouse towards the other and vice versa. This can help keep a negotiating from stalling should tempers get heated.
In my experience, It is not coincidence that some of the best outcomes in a collaborative divorce are when the team includes a divorce coach.
The biggest benefit of the collaborative divorce negotiation is the group effort to come to a resolution that both spouses can live with. The collective efforts of the team put everybody involved on the same page. It’s very infrequent that a spouse will leave a collaborative divorce session agreeing to one thing and then changing their mind at the next session.
For the couple mentioned above, the breakdown in communication, coupled with the attorney involvement in the mediation, led the couple to an impasse. The case was litigated in probate court, most likely with a more costly and less desirable outcome.
Divorce mediation can be a more affordable than collaborative divorce, but it really depends on the people and the circumstances. Many couples can use divorce mediation and come to a reasonable agreement for all. Some can’t. As an attorney who practices both, I help people decide which approach is best for their specific situation.