Many people think mediation and collaborative divorce are the same thing. Some members of the legal community may even indicate there is not much difference between the two. While it is true that collaborative divorce practice has its roots in mediation, it is a distinctly different process.
What is Mediation?
In mediation, a neutral third party helps a couple define their areas of disagreement, then leads them to draw up a legally-binding agreement. Most mediators will help the parties come up with a proposed agreement, or memorandum of intent, but advise them to each have an independent lawyer review it prior to signing the final document. The mediator simply directs and controls the meetings, which generally involve only the mediator and two disputing parties. The mediator cannot provide legal advice or advocate for either side, but parties may hire and consult their own attorneys between mediation sessions.
Sometimes a divorcing couple chooses mediation; other times, mediation is ordered by the court and may be limited to a particular issue. Mediators receive special training and are regulated by each state. Agreements reached in mediation are legally binding when entered with the court. A mediator is forbidden to reveal what was discussed during mediation and cannot be called as a witness should the mediation process fail and the case goes to court.
What is Collaborative Divorce?
Collaboration is a team process in which both parties and their respective collaboratively trained lawyers meet together in four-way meetings to cooperatively resolve divorce issues. Each attorney advises and supports their own client, but they may also speak to each other and each other’s client, during the process. The couple work together to develop an equitable, or “acceptable” agreement that meets the needs of all parties, particularly the children.
Meetings rely on the voluntary and free exchange of information and emphasize respect, cooperation, honesty and professionalism. There is emphasis on developing positive communication skills as a basis for future contact. Additional advisers such as financial or child specialists may be hired jointly to advise all parties. There is no timeline and parties may meet as frequently and for as long as it takes to arrive at agreement.
Collaborative lawyers and team members receive specialized training and many subscribe to the ethics of the International Academy of Collaborative Professionals. In addition, generally collaborative lawyers must have practiced family law for a minimum of 5 years. Agreements reached through the collaborative process may be registered with the court and become legally binding. Should the collaborative process fail, the attorneys and advisers are prohibited from representing either party in court. While this may sound like a drawback, it is actually the linchpin for success in the collaborative process. Let me tell you why that is if you have any interest in this option for a more peaceful and child-friendly divorce – call me, Mike Mastracci, at (410) 869-3400.
MIKE THE LAWYER HELPS GOOD PEOPLE THROUGH BAD TIMES.
Hiring a lawyer should be the first thing you do when encountering any legal matter, not a last resort. Whether you’re thinking about a separation or divorce or have been charged with a crime, been injured in an accident, or your civil rights have been violated, you need to first know your rights and your options. Consulting a lawyer first can actually save you both time and money in the long run.