Divorce mediation and collaborative law proceedings are two very different, but frequently used, conflict resolution methods for divorcing couples. They both hold the promise of keeping you out of court in most cases. But, how do you know which of these options makes the most sense for you?
Mediation has become popular among divorce lawyers as a way to help them try and negotiate divorce settlements. When mediation fails, and the lawyers are unable to negotiate an acceptable settlement agreement using a mediator, the same lawyers can continue to represent you and take you through court proceedings. Many divorce trial lawyers suggest that being able to take you to court is an advantage of mediation.
This “advantage,” however, can also be viewed as mediation’s primary weakness. Because the lawyers are likely to continue to represent you in court if your case is not settled in mediation, the lawyers and the mediator will approach settlement in mediation the same way they would if your case were in court. It’s often a contentious form of negotiating, and is typically focused on likely court outcomes which may or may not be the best outcome for you and your family.
Collaborative law proceedings were designed to provide an alternative.
In 2003, the North Carolina family-law statutes were amended to provide for collaborative law proceedings. The collaborative law statute requires that attorneys who are engaged in collaborative law proceedings agree that they will never represent either spouse in future court proceedings. This is the advantage of the collaborative process.
By removing the settlement process from the adversarial court system, attorneys are freed in the collaborative process to become part of a professional team, helping you to reach a fair and workable settlement using problem-solving tools and techniques instead of antagonistic courtroom tactics and strategies.
The collaborative process will generally be your preferred option if, like in mediation, you want full legal representation from an attorney during the settlement negotiations, but, unlike mediation, you want the negotiations to take place in a supportive, rather than an adversarial, environment.
Mediation is popular among divorce trial lawyers… but it’s still adversarial.