Mediate, Collaborate or Litigate?

It’s confusing. Your best friend who went through her own divorce recently is full of advice. Your father’s advice is in direct opposition to hers. And your co-worker offers yet a different perspective. Your head is swimming. How to decide? Answer the below questions and gain clarity.

First some definitions: 

A.  MEDIATION–together you meet with a neutral mediator (not your lawyer or your spouse’s) who facilitates settlement discussions based on both parties’ needs and wishes. The goal is a settlement that feels workable to you both. It’s important to remember that the mediator cannot provide legal advice or prepare legal documents; you’ll need your own attorney for that.

B.  LITIGATION–you are represented by an attorney who will first endeavor to negotiate settlement terms with your spouse’s lawyer but ultimately, if agreement is not reached, a judge will decide. Your attorney will represent you in court during hearings and at trial. Necessary documents are subpoened, questions answered under oath and depositions may be taken prior to trial.

C.  COLLABORATIVE PROCESS–you and your spouse commit to reach your OWN agreement rather than asking a judge to impose his/her judgment on your family and finances. You each retain a collaboratively-trained lawyer to represent you in settlement sessions guided by your divorce coach, a mental health professional trained in collaborative law. You are always at the table and involved in developing your own settlement.

Questions to ask when choosing a process:

1. Where do you want to be in two years? If you have children together and you want to co-parent well in the future, let that goal be your guide. If that is your spouse’s goal as well, mediation or Collaborative Law might be your best option. However, if your spouse/partner is threatening to “take custody” and “smash you like a bug on a windshield” (actual quote from a former client), then you’ll likely need the protection of the court and your attorney. That means litigation. If you have both been involved and caring parents but you simply disagree about parenting plans, a child specialist, available in the collaborative process, can be highly effective.
2. Are you comfortable speaking your own mind?  Divorce is scary. Most people going through it have difficulty sleeping, thinking clearly, and struggle to not let emotions overwhelm them. If this describes you, and you can’t even begin to contemplate how you’ll ever be okay again, then you would benefit from having a trusted legal advisor by your side. This can prevent you from making ill-advised or uninformed agreements. The collaborative process or litigation will likely serve you best. Be aware that, in this state, you are most vulnerable to being influenced by well-meaning family and friends. But most of them have not been to law school and probably do not have an objective view of the strengths and weaknesses of your case (both are always present). So listen but choose a lawyer who has experience navigating this new legal world. Conversely, if you do not have concerns about being intimidated or afraid during direct discussions with your spouse or partner, mediation may be highly effective.
3. How much can you spend on your divorce? Litigating to trial is the most expensive option of the three. But you may not have a choice if safety of people or property is at risk. Mediation is likely the least expensive. But be aware that mediation only develops the agreement and there are court requirements: filing the initial papers to commence the divorce, drafting all the legal documents which must accompany your agreement, and the hearing to finalized your divorce). These are not handled by the mediator and involve additional costs to meet those requirements. Collaborative Law, while not the least expensive, handles both settlement terms, legal documents and final court hearings. More importantly, because you and your spouse are always involved in developing the terms of your settlement (rather than a judge forcing them on you) agreements are usually honored. That means you won’t find yourself in another court process a year or two after your divorce trying to enforce your judgment.  Get clear with your lawyer or mediator about hourly rates and anticipated costs.
4. Will you and your spouse fully disclose information about finances, income, property and debt? Good decisions can only be made with good information. If relationship trust has been broken but generally you and your spouse are honest, trustworthy individuals, then collaborative law or mediation are options. They are the most direct route to assembling information and moving quickly into meaningful settlement discussions. If your spouse has quit deposting income into joint accounts or is otherwise acting in secret, then you may need the subpoena power available in litigation to obtain complete information. (Be aware, if you are the one considering such behavior, you have just guaranteed yourself a more expensive divorce. Information is obtained in a divorce. It’s just a matter of how much of your combined resources are going to be expended to obtain it).
5. Can you DIY? If you do not have children and have few if any assets, you may be able to work out the general terms of an agreement, obtain the necessary documents, and consult with a lawyer to make sure you are not overlooking important issues that could cost you more to correct down the road. For more about DIY readhttps://familyresolutions.us/2018/08/21/legal-advice-a-waste-or-wise-investment/

WHERE TO START

It may be helpful to factor in that you can add assistance as needed. For example, you may use mediation but if you reach an impasse, you can always employ collaborative lawyers to continue your work toward a mutually agreeable settlement. If still unsuccessful, the litigation process is always available. (The converse is not true: it’s virtually impossible to start with the most adversarial process and ratchet back to collaborating or mediating).

Still have questions? That’s why we’re here. We’d be happy to sit down with you and discuss your concerns, specific needs, and assist you in making the best process choice for you and your family.

Wishing you wisdom,