Learn How Collaborative Divorce Is Different From Mediation
By Dan Lewis
As a family law attorney and certified family financial mediator, I have spoken with many individuals who are unaware of how Collaborative Divorce and mediation are actually defined and the differences between these alternative dispute resolution methods. This is understandable as one would only need to know this information if they experienced family law issues. The fact is that Collaborative Divorce and mediation are both alternative dispute resolution models that parties use to settle legal issues and have a relatively high likelihood of success where parties compromise to avoid going to court and move on with their lives. However, there are stark differences between these two models.
Collaborative Divorce
“Collaborative Divorce” is a means of dispute resolution based upon the parties’ interests where they work together with their attorneys to resolve family law issues. Through a series of meetings (in-person, virtual, or a combination), parties and their attorneys discuss each issue and generate options for settlement where the parties maintain control of the outcome. At times, third-party neutral professionals, such as divorce coaches and financial professionals, assist the parties and the attorneys as needed and as agreed upon by your collaborative team.
Very importantly, a distinctive element of the Collaborative Divorce process is the signing of a Collaborative Divorce Participation Agreement by the parties and their attorneys. This agreement contains the vital provision that if the process does not result in a settlement, then the parties’ attorneys must withdraw from their representation. Additionally, the written agreement sets forth various rules, including:
- Respect for one another, the attorneys, and the process;
- The voluntary exchange of documents and information; and
- That all statements made by a spouse, all documents exchanged, and all reports or work product generated during the process, are confidential and inadmissible in court.
Mediation
Mediation is a confidential settlement discussion between parties that is facilitated by a trained, neutral third party to assist in resolving disputes through positional negotiation. Like Collaborative Divorce, in mediation, the parties control the outcome rather than a judge. The mediator cannot give legal advice to either party and does not decide who is right or wrong. Instead, the mediator facilitates by attempting to reach a compromise.
Parties can choose to attend mediation before going to Court or once their case is pending, and can attend with attorneys or without them. Sometimes the parties are in the same room for mediation sessions and sometimes they are in separate rooms where the mediator moves back and forth to discuss settlement proposals/counter proposals. Mediation may take up to one day or over multiple sessions depending on the complexity of the issues and the ability of the parties to compromise. If a compromise is reached, an attorney drafts the settlement documents setting forth the agreement reached in mediation. If you have a child custody case pending in North Carolina, then you are required to attend mediation per North Carolina law. If you have financial issues pending in North Carolina, then you are required to complete some form of Alternative Dispute Resolution (ADR), and mediation is a commonly used option.
Dan Lewis is a partner with Tin Fulton Walker & Owen, PLLC, in Charlotte, North Carolina. He has exclusively practiced family law since 2005, is a North Carolina Certified Family Financial Mediator, and has been practicing Collaborative law since 2009.