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Mediation and CollabLaw

by Oran Kaufman
December 2013 Oran Kaufman

Living in the United States, we have options for just about everything in life. Just visit the grocery store, shop for cars or look in the yellow pages for alternative health practitioners to see the choices that abound. Unlike just about every aspect of life in America, until relatively recently there were not a lot of options for people seeking a divorce. It used to be that couples getting divorced in Massachusetts could only do so by showing that the other spouse was at fault.  As a result, almost by definition, every divorce was contested.  This changed radically in 1974 when Massachusetts adopted the Uniform Marriage and Divorce Act and a new era of no-fault divorce was begun.  However, even with the advent of no-fault divorce, a couple seeking a divorce did not have many alternatives for resolving their divorce other than the traditional litigation model.  Thus, even though fault was generally no longer an issue, litigation, often contested, was the norm for resolving divorces.

            Within the last twenty-five years mediation developed and has grown in popularity as an alternative to litigating divorces.  More recently, “collaborative law” has emerged as yet another approach and option for couples going through a divorce.  In choosing between the various options available for resolving a divorce such as litigation, mediation and collaborative law, it is essential that couples do the research and fully understand each approach, its benefits and limitations.  When couples are divorcing, they are dealing with every major aspect of their lives- the children, the house, retirement, health insurance, life insurance and so on. Doing the research about how to approach and resolve these issues will allow the couple to choose the approach that works best for them.

            This article will explore how mediation and collaborative law are similar and different and some of the things couples should consider in choosing between these two alternative approaches.

            In mediation, a couple meets with a neutral third party (the mediator) to discuss and resolve the terms of the divorce. The mediator does not represent either party and does not give legal advice.  The mediator’s role is to help facilitate communication between the parties, assist the parties in considering and resolving issues that must be addressed, help break impasses and facilitate exchange of information between the parties.  In mediation parties generally mediate without their attorneys although they are encouraged to seek the advice of their own independent attorneys at some point during the mediation.   At the end of the process, if agreement is reached, the mediator will prepare a written agreement which the couple can ultimately file with the court as part of their divorce.

            In collaborative law, each client retains an attorney trained in the collaborative law method.  Both parties and both lawyers sign a contract together, which includes among other things a provision that states that if either party decides he or she needs to go to court, both lawyers will withdraw from the process and the parties need to hire two new lawyers.  This aspect of collaborative law creates a huge incentive to see the process through to the end.  The contract also requires the parties to make a commitment to voluntarily exchange information and if necessary hire joint experts rather than “dueling experts”. The collaborative law process proceeds through a series of structured four way meetings during which the parties, with the help of their attorneys discuss and hopefully resolve the issues necessary for the couple to get divorced.

Although the above descriptions represent only a brief glimpse into the mediation and collaborative law process, they do provide some insight into the some of the differences between these two approaches.  Clients considering mediation or collaborative law should start by obtaining as much information about the processes as possible.  There are many books about mediation and a growing number of books about collaborative law.  A web search under “collaborative law” and “divorce mediation” is also a good place to start.  In addition, most practitioners offer free consultations.  This is a good place to learn about the process and to get a feel for the practitioner and the chemistry between the client(s) and the practitioner. 

            Having research under their belt, a couple must then decide which approach makes the most sense for them.  Some of the questions to consider might be:

  1. Is cost a factor?
  2. Is time a factor?
  3. Are both parties able to advocate for themselves?
  4. How much control does the couple want to have over the process? 

 

Cost

 

Mediation is generally the cheapest approach to resolving a divorce.  Collaborative law is more expensive than mediation but usually less expensive than litigation.  Sometimes cost is the sole deciding factor. For a couple that has very little money to spend on resolving their divorce, there may be no choice but to do it on their own (pro se) or through mediation.  On the other hand, if the couple has money but simply wants to do it the cheapest way possible, they should at least consider the other factors below before making their decision.

Time

 

If the couple is motivated, able to do the work necessary and follow through, mediation may be the fastest approach.  This is because among other things you are dealing with three schedules instead of four. The more schedules come into play, the more delay there will be.  On the other hand, with collaborative law, lawyers can play a key role in assisting clients in obtaining information, filling out financial statements and assisting clients in moving the process forward.

Advocacy

 

            One of the primary areas where collaborative law practice is most appropriate is when one of the parties feels like they have a difficult time advocating for themselves and needs the assistance of a lawyer to advocate and to consult with in real time.  This might occur if one of the parties is particularly shy or not particularly articulate.  It may be that one of the parties is much more sophisticated about a particular topic. So for instance if one of the parties is an attorney, the spouse may feel inadequate in his ability to “compete” with his spouse’s advocacy skills.  Similarly, if one party is an accountant, the spouse may feel like she needs ongoing assistance when dealing with financial matters. 

In mediation, the mediator would attempt to address the power imbalance by maybe encouraging the less sophisticated spouse consult with an accountant or lawyer so that she could “get up to speed.”

Control

In different ways, both collaborative law and mediation offer clients a greater sense of control over their divorce and their destiny.  One of the complaints about litigation is that clients lose control of the process and cede control of major decisions to lawyers and judges.  In mediation, the mediator establishes the structure and controls the process but the clients are in complete control of the decisions they make, the pace they want to go and what they ultimately agree upon.

In a collaborative law case, the lawyers create the structure and the process but again the clients are in control of the decisions made and the pace of the process.  They are not controlled by the court schedule, as is the case with litigation.

Finally, collaborative law and mediation are not mutually exclusive.  There are times when the ideal situation might involve a couple engaged in collaborative law hiring a mediator to help resolve an impasse. This might be done in a mediation session with the clients and the lawyers or the clients alone.

Mediation and collaborative law arose out of a need for an alternative to the divorce litigation process that is often expensive, anxiety provoking, lengthy and inefficient.  Nevertheless, there are times when there is no alternative but to litigate.  This is particularly so when one party refuses to engage in mediation or collaborative law.  One of the hallmarks of both approaches is that they are both voluntary and neither party can be compelled to participate. On the other hand, a couple may not be in agreement about how to resolve their various issues but may at least be in agreement about the process they wish to use.  For those couples, collaborative law and mediation provide a long needed and welcome alternative.

Biography


Oran Kaufman has been a mediator since 1994 and runs Amherst Mediation Services in Amherst, MA where he concentrates his practice in the area of divorce and family mediation.  He is also co-owner of ConflictWorks which provides conflict resolution training for organizations and businesses.   He is a former president of the Massachusetts Council on Family Mediation and is and advanced practitioner with the Association of Conflict Resolution and the Academy of Professional Family Mediators and a certified mediator with MCFM.  He has lectured extensively and written numerous articles on mediation related topics.   



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