Collaborative Divorce and Mediation are Alternative Dispute Resolution (“ADR”) methods that can enable divorcing couples to preserve resources and avoid costly litigation. Especially when children are involved, parents will have a common connection forever and therefore, how parents effectuate their divorce can have lasting impacts on a family. Since there are critical differences between the ADR options, it is important to learn which method is right for you and your family.
What is a Collaborative Divorce?
The Collaborative model utilizes a team approach consisting of two collaboratively trained attorneys (one for each party) as well as other neutral professionals as the parties deem appropriate. The neutral professionals may include divorce coach(es), a child specialist and/or a financial neutral. The team approach is the hallmark of the collaborative process, with each team member having distinct roles as follows:
Pursuant to the Uniform Collaborative Law Act passed in 2017 in Illinois and Supreme Court Rule 294 which supports the Collaborative process and dictates what a collaborative lawyer can and cannot do, the parties must sign what is termed a Participation Agreement (“PA”). The PA sets forth the Collaborative ground rules which includes full disclosure of all relevant and necessary information needed to complete the divorce process as well as a disqualification provision. The disqualification provision states that if the collaborative process breaks down and no agreement is reached, all of the professionals must be discharged. The parties are required to retain new counsel and new experts when they proceed in litigation. The work product generated in the collaborative process is also prohibited from being utilized in litigation, which is the lynchpin of the process. By eliminating the option of going to court, the parties are incentivized to resolve issues in the process and allows everyone to focus on the goals and interest of the parties rather than taking extreme positions and eventually finding a middle ground three years later.
What is Mediation?
Mediation is when two parties employ a neutral professional (usually an attorney, but not always) to facilitate communication and negotiation directly between the parties. A mediator does not offer legal advice and does not need to be “convinced” of either party’s position. A mediator’s role is not to make any decisions, but rather to facilitate communications between the parties, which will hopefully lead to an agreement. Mediation can either be between the parties only, or counsel can also be present with their clients under an attorney-assisted mediation model. If attorney-assisted mediation is utilized, the attorneys’ role is to advise his or her client as to the law with respect to the negotiations and to assist in the problem-solving process to include offers and counteroffers in the process.
Mediation is private and if an agreement is reached, the mediator will put together what is called a memorandum of understanding (“MOU”). An MOU is then utilized by the attorneys to draft the financial and/or parenting agreements reached.
Unlike the Collaborative process, which is typically a decision made at the onset of moving forward with a divorce, mediation can occur at any time including before, during and even after a trial. Sometimes mediation is utilized to address some of the issues rather than all of them as well. As such, it is a very versatile way to resolve disputes.
Which is Right for You and Your Spouse?
ADR process options have seen a surge in popularity - particularly in family law cases - due to confidentiality, cost-effectiveness, and efficiency. While there are several differences between a Collaborative Divorce and Mediation, both processes focus on problem-solving under a needs and interests based approach rather than traditional positional bargaining. Whether you and your spouse decide to use Collaboration or Mediation, attempting to resolve the divorce outside of the courtroom may be one of the best decisions you could ever make.