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.
As another option, Adam talked about co-mediation. In Rachel and Adam’s model of co-mediation, the spouses work with two neutrals: A therapist and an attorney.
The attorney co-mediator draws on his experience to aid the clients and develop options that he has seen work in other cases. If it is helpful, he can identify statutes for the clients to read that may inform them in their decisions without giving legal advice. He is also helpful in wordsmithing the Marital Settlement Agreement, providing required forms, and informing clients of legal protocols.
The therapist co-mediator, on the other hand, can help spouses identify their interests and goals. She helps create a parenting plan that is developmentally appropriate for the kids and tailored to each family’s needs. Because the therapist co-mediator normally practices with couples in conflict, she is well equipped to keep discussions productive and communications effective.
Collaborative Mediation Options
Pamela turned to Adam and asked whether he would let them know whether the agreement is good or bad. Adam confirmed that though he cannot provide legal advice, it is the clients’ right to have attorneys counsel them. Because collaborative attorneys are specially trained to work as a team and help clients reach out-of-court agreements, Rachel and Adam suggested that mediation clients choose collaborative attorneys. In fact, Adam and Rachel explained that they have a provision in their co-mediation contract which states that any attorney hired must be collaboratively-trained.
If either client retains an attorney, Rachel and Adam ask, and their contract provides, that the co-mediators be notified. The co-mediators also require that, if both spouses retain attorneys, everyone sign a collaborative participation agreement that states that the attorneys can only be used for private dispute resolution and cannot be used to fight in court. Adam mentioned that the co-mediators do this to give their clients the best shot at successfully reaching a full and durable out-of-court agreement.
You can find the entire Co-Mediation and Collaborative Mediation article on page 13 of the Summer 2017 edition of the Commentator Magazine, accessible at the following link: http://familylawfla.org/wp-content/uploads/2017/10/Fam-2017-SummerEdition-Final2-print.pdf.
Adam B. Cordover is a Florida Supreme Court Certified Family Law Mediator. He is a frequent trainer and presenter nationally and internationally on topics of private and respectful dispute resolution. Adam can sit down with you and your spouse to discuss co-mediation and collaborative mediation options.