Divorce Mediation & Collaborative Divorce Articles

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Collaborative Divorce – Why everybody wins by participating

wicp-sign-participationThe benefits of collaborative divorce appeal to many divorcing couples. Those benefits include: private negotiations; in general, shorter period of time to reach a settlement; and, consequently, smaller legal fees. Those benefits, however, come with a commitment: you have to participate.

A participation agreement is something I make every collaborative client sign and participation goes far beyond his/her physical presence. The participation agreement means you agree to:

  • Provide full and honest disclosure of all financial information.
  • Share information freely and work towards an agreement.
  • Preserve the status quo (e.g. no selling off marital assets during the course of the proceeding) unless there is an agreement otherwise.
  • Negotiate in good faith, take reasonable positions and accept that compromise is inevitable.
  • Work with neutral experts should that be deemed necessary

Ultimately, the participation agreement is about respect. Respect for yourself, your spouse and, mostly, respect for the process.

It’s not lost on collaborative divorce attorneys that the prospect of not going to court and potentially reducing the time it takes to get divorced and legal is what draws a lot of people to collaborative divorce. The participation agreement makes it clear to couples that you will have to work and put forth an effort to reap the rewards of those benefits.

Sometimes, the “I don’t have to go to court for my divorce” mentality comes with  a winner-takes-all attitude towards the divorce. In collaborative divorce, we like to say everybody wins, largely because nobody loses.

In collaborative divorce, you need to understand you will not get everything you want. In a certain sense, you should not want to “win” because that will mean your ex  “lost.” That can lead to some bitterness that will permeate your relationship going forward. If you have children that can lead to potentially ugly situations, even a return trip to court—the very thing you were trying to avoid.

You should enter into a collaborative divorce hoping for the best but expecting to have to compromise. You should also have an idea of what you want, what you will accept and what you can and can’t live with. That’s why people with winner-take-all approaches to collaborative divorce can sometimes end up in litigation because they are not willing to accept less than what they want.

In all the years I have been practicing collaborative divorce, there has been only one instance where we could not reach a resolution and the case went to litigation. That’s a pretty high percentage and one I take a lot of pride in.  I like to think  it’s largely because of the work done in the initial meetings and explaining how the proceedings will go and, of course, the participation agreement.

To request a sample copy of a typical participation agreement, please e-mail me at lillis@domesticlaw.net.


Why people haven’t heard of collaborative divorce

Most people haven’t heard of collaborative divorce and that usually presents a great opportunity for me to talk about it.

For example, at a recent holiday party, I was talking to an attorney and her husband. She had heard of collaborative divorce, though she did not practice it. But her spouse, a seemingly intelligent and educated man, had no idea.

After sharing some information on collaborative divorce, the conversation moved on to other topics and I didn’t give it a second though until the drive home. Then, I started to really think about why more people do not know about collaborative divorce.

The most obvious explanation is that unless you are either going through a divorce or been divorced, there’s really no need for you to know. Yet with more than 50 percent of marriages ending in divorce, it’s still difficult fathom why more people don’t know about collaborative divorce.

One reason could be that collaborative divorce attorneys typically get business by word-of-mouth from people who have been through the process. You are not likely to hear many of us advertising on the radio or TV.

While lack of media exposure could be a reason, it probably has more to do with people’s reluctance to talk about their divorce—unless the proceedings are going poorly and/or are drawn out. So, you might say that collaborative divorce’s lack of notoriety is a byproduct of its many benefits.

What are those benefits? For starters: privacy.

Collaborative divorce takes place in conference rooms, behind closed doors in confidential meetings. The only time collaborative divorce “goes public” is when the final agreement is submitted to the courts. In litigation, virtually everything is public and you have to make your arguments before the judge, who will ultimately make the decision.

Drama is another reason. Or when it comes to collaborative divorce, a lack of drama.

By its’ very nature, couples choosing collaborative divorce generally agree on the basic terms of the divorce. The divorce settlement becomes a negotiation of the specifics. That’s probably why you will never see a movie with a collaborative divorce as the backdrop.

On the other hand, a movie like Kramer vs. Kramer, with its dramatic custody verdict, won five Academy Awards.

That doesn’t mean there’s no drama or tension in a collaborative divorce case. Far from it. But in a collaborative divorce, couples work with professionals ranging from psychologists, divorce coaches, financial professionals, etc. so that drama can be mitigated and avoided.  That’s why a large part of the collaborative attorney’s job is to maintain the focus of the negotiations. If emotions begin to run hot, there are enough professionals in the room to call for a break before anybody loses his/her composure.

Collaborative divorce’s name recognition also “suffers” from the efficiency of the process. Typically, a collaborative divorce and take between six to nine months—with exceptions being cases where one or both spouses do not provide financial and other documentation in a timely manner.

In litigation on the other hand, you are barely beginning process at six months and a final divorce decree will probably take close to two years. The added time certainly does not help people going through a major life change to find closure. Quite often, it involves reopening wounds and that can increase the bitterness. And that’s when people tend to vent.

The added time can also mean added legal expenses. That can add to the bitterness of a divorce and, you guessed it, more venting.

In fact, that may be the very reason right there: venting, or lack thereof.

The outcome of a collaborative divorce is literally in the hands of the divorcing couple. Each party will come in with a vision of what they want, a thought in mind as to what they will accept, and, finally, a worst-case scenario they can live with. What keeps or diminishes the amount of venting is that, in the end, the decision of what you agree to is yours and not some third-party.

As I pulled into my driveway, this internal brainstorm came to an end. The average man or woman in the street may not know what collaborative divorce is. That’s not ideal but that will change. Divorcing couples should have as much say and control at the end of their marriage as they did in the beginning. Collaborative divorce is really the only way to make that happen.


Must reads for divorcing couples

article-0-05707195000005DC-856_468x309It’s been said that nothing can prepare you for divorce. Emotionally that can be true. From a practical standpoint, you can prepare yourself for the type of divorce you want and what you might expect after making that choice. That’s why in addition to filling out questionnaires, I send my prospective clients to my blog before meeting with them.

While I try to make all articles on the blog relevant for divorcing couples, some offer that “what to expect” element better than others. Those articles are as follows:

Is there a type of person who shouldn’t use collaborative divorce or divorce mediation? – The title is self-explanatory. There are certain personality types for whom collaborative divorce or mediation are not the right options. This article reinforces the expectations for when you take part in either collaborative divorce or divorce mediation.

Read the article

Setting the boundaries for a smooth divorce – Again, this article is of the “what you can expect” variety. It also highlights some of the ways you can avoid negotiations from becoming contentious.

Read the article

A guaranteed way to reduce your lawyer bill – In a divorce, time is money. Specifically, your attorney’s time is money. Divorces where parties do not have all their financial statements and other paperwork prepared will typically result in more hours for the attorney, resulting in a larger legal bill.

Read the article

5 common missteps in mediation – Perhaps the first paragraph of this article says it best, “In mediation, there’s an overall assumption that both parties are reasonable and are willing to work together to reach an agreement. In addition, it is not uncommon for at least one of the spouses to be anxious to get through the mediation in order to put the divorce behind him or her. This can sometimes lead spouses to assume that some that details of the mediation agreement do not require a high level of attention, or that if something important comes up later they will be able to discuss it with their ex spouse and come to a reasonable arrangement. Unfortunately, these assumptions can lead to the more common missteps in a divorce mediation.”

Read the article

Life and death divorce matters – Life insurance for your spouse is an important matter in a marriage. It becomes just as important in a divorce. Particularly when there is child support and spousal support or alimony involved. This article takes an in-depth look at an often overlooked part of any divorce.

Read the article


Can your divorce be like your wedding?

cakeThe short answer to that question is “yes”. Before you think I’ve lost my mind, think about the process of getting married. The decision-making process is very much like collaborative divorce.

First, you and your spouse made a mutual decision to spend the rest of your lives together (in most cases). Then, to varying degrees, you planned a wedding based on several variables: budget, logistics, your individual tastes, family considerations, etc. Then, with help of several professionals—wedding planner, caterer, photographer, videographer, travel agent, limo service, etc.—you planned and executed a wedding and honeymoon.

How a wedding is like a collaborative divorce is that even though you relied heavily on the counsel of all those professionals, each decision was yours and your spouse’s. More couples are turning to collaborative divorce because they want the outcome of their divorce to, similarly, be in their hands.

If you’re having trouble with this analogy, let’s back up a bit.

For starters, couples make a mutual decision to end a marriage. Sure, it may have been one party’s decision at first, but ultimately you both agree to end the marriage.

Much like beginning plans for a wedding, you both have an idea of the things you want out of the divorce. For example, one of you may want to stay in the family home. Your spouse may want certain holidays with the kids. These wants and desires become the agenda for the negotiation.

In negotiating the settlement, you will work with a number of special advisors—financial planners, divorce coaches, psychologists, and your collaborative divorce attorney. These professionals are there to guide you through the process (much like a wedding planner). But each and every decision made as part of the settlement is made by you and your spouse.

In a divorce settled by litigation, it can be quite a different story. The lawyers are bound by rules and math formulas to create financial settlements, allocation of assets, parenting schedules and a number of other agenda items. For many couples who go the litigation route, very little of the final divorce agreement resembles their wish list of things they want.

Perhaps the most frustrating part of the litigation process is that it can feel like your voice is never heard, figuratively and literally. Just your attorney’s and the judge’s. While a judge you don’t expect to know, it’s difficult for an attorney you have never worked with before to really know you. And though your attorney will do his/her best, it really is an interpretation of your thoughts and feelings.

In a collaborative divorce, you truly dictate the terms of the divorce. And it can be your actual voice in the negotiation stating what you want and your choice as to the terms you are willing to accept.

To state it simply, using our wedding analogy, the divorce is ultimately what you want it to be and all the professionals involved are there to help make that happen.

Does that mean you get everything you want? Think about your wedding? Was everything exactly what you wanted? Was every person you wanted to invite there? Probably not. The same will be true of your collaborative divorce. But at the end of the day, just like before, the decisions will be made by you and your spouse. And, just like your marriage, you will have to live with the consequences—for better and worse.


Not your typical meeting

78163618-1024x685As part of every collaborative divorce proceeding, spouses, their attorneys and a facilitator have a series of  “team meetings” to discuss  and negotiate the terms of their divorce. Even if you regularly attend meetings as part of your job, the collaborative team meeting is like no other meeting you will ever attend. Hence, you need to prepare for it differently. (more…)


Why Ben and Jen chose mediation

Ben Affleck and Jennifer Garner mediation

Ben and Jen: Breaking up is hard to do.

That headline should probably say, “why Ben and Jen probably chose mediation”. Without knowing the two parties or being involved personally, that’s all I can do. Yet as a practicing mediator for the past 25 years, it’s fairly obvious why a high-profile couple would choose mediation: control.

That answer might surprise those of you who thought money. While even couples worth a combined $115 million may not wish to spend more than they have to on attorneys, there will be legal fees whether they settle in court via litigation or privately in mediation.  But by taking the latter approach, Mr. Affleck and Ms. Garner can control the outcome of their divorce settlement. (more…)


Is there a type of person who shouldn’t use collaborative divorce or divorce mediation?

I’m a collaborative divorce and divorce mediation attorney. As you have read in this blog over the last several years, there are a great number of benefits to using both methods to resolve issues so that divorcing couples can reach a divorce settlement fairly and swiftly. Yet as firm a believer as I am in both methods as effective means to end a marriage with minimal hurt and stress, some divorcing couples are not suited to collaborative divorce or mediation.



3 Reasons Why Divorce Mediation Can Cost More Than It Should

“Time is money”. While this is true in just about any business, it’s even more true in divorce cases. That’s what makes divorce mediation so appealing to many couples. Instead of being at the mercy of the judge and attorneys, divorce mediation puts the onus on the divorcing couple to do the necessary legwork to move the proceeding along. Usually, the better prepared couples can come to an agreement within a matter of months while the standard time period for a litigated divorce is one and a half years. (more…)


How do you rate a collaborative divorce?

image for collaborative divorceTelevision networks have the Nielson’s. Attorneys have Martingale-Hubbard and Avvo. Couples going through a collaborative divorce, however, act as their own rating service during the course of the proceeding and grades are based on whether or not both parties’ objectives/goals are being met.

Confused? Let’s take a step back. At the first meeting of a collaborative divorce, couples are asked to clarify their goals as to what they want to get out of the proceeding. These goals can vary depending on the person, the couple and their situation. (more…)