There has been a growing recognition over the past few decades that courtroom divorce, an adversarial process that pits husband against wife, is a dreadful and harmful method to resolve family disputes. As a result, the Florida Supreme Court, like many other judicial bodies, declared that family matters needed “a system that provided nonadversarial alternatives and flexibility of alternatives; a system that preserved rather than destroyed family relationships;…and a system that facilitated the process chosen by the parties.” In re Report of the Family Law Steering Committee, 794 So. 2d 518, 523 (Fla. 2001).
Two alternatives that have developed to fill this space are mediation and collaborative divorce. As collaborative divorce is a relatively new option, and there exists much confusion – even among experienced family law practitioners – about the differences between these two methods of dispute resolution, this article looks to compare and contrast mediation and collaborative divorce.
Event versus Process
Mediation is generally a one-time meeting where the parties come together, along with a mediator, to attempt to settle disputes. In Florida, the parties’ attorneys are also in the room, though other jurisdictions exclude attorneys. The mediator is a neutral actor who does not have the power to force the parties into any type of settlement, but can only encourage them to reach an agreement. A mediation conference will generally last from 3 to 8 hours or more. If the parties cannot reach an agreement in that meeting, then they tend to go to court, usually multiple times.
If you have children and are going through a divorce, your biggest concern is likely how your kids will be affected. When is the best time to tell your children, and how much should you share with them?
Your Children Will Know
Your children will know that something is going on, and leaving them in the dark may cause more apprehension and stress in them than just being upfront. Establish a united front early in the process, and tell your children together that you are separating. Assure them that while things will be different, everything will be okay. Alleviate their fears that your divorce is in any way their faults. Remind them often during the process that everything will fine and it is not their faults.
Collaborative divorce as a form of out-of-court dispute resolution has been around since 1990, but it did not just magically appear. Minnesota family law attorney Stu Webb decided he was fed up with the traditional adversarial court system. And he decided to do something about it.
In the video below, Henry Yampolsky of the Living Peace Institute interviews collaborative divorce founder Stu Webb:
Running a small business is tough enough. Running a small business while your marriage is falling apart can be crushing. But you don’t need to go through a traditional court battle if divorce is on the horizon. Your business does not need to be a casualty. There is an alternative. There is collaborative divorce.
Small Business & Privacy
Collaborative divorce is a form of out-of-court dispute resolution that values privacy. This means that your client lists, inventory details, and other trade secrets remain safely away from public court records. In fact, here in Florida, the Collaborative Law Process Act and accompanying rules safeguard most communications had within a collaborative divorce. Courts now have authority to sanction a party who reveals a collaborative law communication.
In 2012, as news of Tiger Woods’ extramarital affairs and his wife’s reaction repeated on TV broadcasts and magazines throughout the world, some professionals stood up and said it does not need to be this way. You can maintain your privacy and dignity in your family law matter. You can utilize the collaborative divorce process.
In the video below, Psychologist Ellie Izzo, author of The Bridge to I am: Rapid Advance Psychotherapy and co-author with Licensed Marriage and Family Therapist Vicki Carpel Miller of Second Hand Shock: Surviving and Overcoming Vicarious Trauma, discusses collaborative divorce in the wake of the Tiger Woods divorce:
Collaborative divorce is not for everyone. Sure, most families going through divorce would benefit from the private, secure, and non-adversarial nature of the collaborative process. However, it may not be right for you if certain things are important to you.
Collaborative divorce is not right for you if…
You are seeking revenge
If you are seeking revenge, collaborative divorce is not right for you. The collaborative process will not satisfy your need to see your spouse suffer. This is because, at the beginning of the case, everyone signs a collaborative participation agreement in which the spouses agree to engage in good faith discussions to reach a resolution. Each spouse has his or her own attorney, and the attorneys are there solely to help the clients reach an agreement. The attorneys cannot be used for opposition research, lengthy motion practice, or accusatory litigation.
However, the attorneys are also there to safeguard the process. If an attorney believes that his or her client is no longer acting in good faith, or is only attempting to damage the other spouse, the attorney may have the right to terminate the process. This shuts down behavior meant to harass the other spouse. If the attorney believes his or her client can put the need for revenge aside, the collaborative process may continue. If not, the collaborative attorney has a duty to ensure that the process is not being used as a tool for vengeance.
Further, the collaborative process generally involves a neutral facilitator, with a background in communication, childhood development, and family and power dynamics. The facilitator helps keep conversations productive and forward-focused rather than centered on past grievances. The facilitator is also there to address power imbalances and shortcut vengeful actions and communications.
Do you ever wonder how your divorce is affecting your children? Do you sometimes think about how conflict may be affecting your own mental health, and your ability to effectively parent, or co-parent?
Gary Direnfeld is an internationally known social worker, speaker, and parenting expert based out of Ontario. He has been an expert witness in many high conflict divorce trials, and yet he is a strong believer that the courtroom is a terrible forum for resolving divorce and parenting disputes. In the following radio interview, Gary discusses why he believes parenting and divorce-related issues should be resolved outside of court:
You can find a partial transcript, slightly edited for clarity, below:
Roughly 80% of folks going through a separation or divorce are going to settle things between themselves. They may have some 3rd party assistance. Twenty percent are going to turn to the courts. Less than 5%, even if turning to the courts, are going to go to trial. Most matter settle ahead of a trial. And then there is that small percentage, that 1, 2, or 3% that really tie up the courts’ time. And I, for whatever reason, find myself heavily involved with those folks.
High conflict parents turn to the court searching for release only to find that in many, many cases, litigation only exacerbates the problems. It doesn’t resolve them. And the reason for that is, in turning to the courts, it is often a race to the bottom. I will prove my case by making you look worse than me, and no one wants to be on the receiving end of that. So the other parent reciprocates in kind. And then the “he said she said” escalates to such a pitch that it is hard to know one from the other.
There are many ways to resolve your divorce issues. The most well-known option is courtroom divorce. This is where the spouses spend years battling it out, finding ways to undermine one another. In the end, a judge tells them who gets what property and where the kids sleep at night. There is also mediation and collaborative divorce, private forms of dispute resolution. But two less known methods for resolving your divorce are co-mediation and collaborative mediation.
Co-mediation is a way for you and your spouse to resolve disputes outside of court with two or more mediators. Oftentimes, the mediators have different training and skillsets. In the co-mediation that Family Diplomacy offers, one co-mediator is an attorney by training. The other is a therapist or accountant by training. The co-mediators do not provide legal or financial advice, nor do we engage in therapy. Rather, in a series of face-to-face meetings, we help develop options that meet your legal, financial, and emotional needs.
In collaborative mediation, you and your spouse each have your own attorneys. The attorneys can only represent you in private dispute resolution. Accordingly, the attorneys spend no time, energy, or money on opposition research, preparing for trial, or encouraging you and your spouse to fight. The collaborative attorneys provide their clients with legal advice so you can make-well informed decisions. The neutral mediator or co-mediators help facilitate an agreement and keeps the process moving forward.
You and your spouse have the ultimate say in how you want to use your attorneys in collaborative mediation. The attorneys can be by your side at each mediation meeting. Alternatively, the attorneys do not attend mediation but instead provide you with advice outside of meetings or only once the mediator(s) draft up an agreement. Still, another option is for the attorneys to attend some meetings (like ones focused on financial matters), but not other meetings (i.e., parenting plan discussions).
Co-Mediation and Collaborative Mediation
Rachel Moskowitz, a Licensed Mental Health Counselor with whom I frequently co-mediate, recently wrote an article for Commentator Magazine. The article describes a case study in which we had a co-mediation that turned into a collaborative mediation. You can find an excerpt of the article below.
Good, you have decided that if you are going to divorce, you are going to do it collaboratively. This means that you and your spouse will each have your own attorneys, but the attorneys are not there to fight. You hire the attorneys to help reach an out-of-court agreement so you can move on with your lives.
But you may also know that either spouse at any time can decide they no longer want to participate in the collaborative divorce, causing it to terminate. All professionals are automatically fired. The spouses then proceed as “opposing parties” in the traditional divorce court route.
The possibility of losing your attorney is a scary notion. So, you may be wondering to yourself, how often do collaborative divorces terminate?