Collaborative Process or Mediation?

If I’m Looking for an Amicable Divorce, Is the Collaborative Process or Mediation a Better Choice for Me?

If you are looking for an amicable divorce process, then you have likely already decided that you want an out-of-court resolution – a really important choice to make at the outset!

Some key ways in which the Collaborative Process and Mediation are similar are: (1) the direct involvement of the clients in the decision-making and outcome, (2) the use of “interest-based” negotiations rather than “positional” negotiations, (3) the ability to craft a more creative, customized agreement which focuses on the unique needs of the particular clients, and (4) the emphasis on listening for understanding, empathy for the other party’s situation, and respectful communications in the process.

However, the Collaborative Process has a unique twist.  The parties retain their attorneys for settlement purposes only and pledge not to go to court or threaten to go to court in order to gain leverage in the settlement process.  This commitment is agreed to in writing, and has the result that if the matter is not successfully resolved in the Collaborative Process and heads into the litigation process, then the parties must retain new litigation counsel.  This aspect of the Collaborative Process creates a powerful incentive for the parties to not give up on settlement when the process gets “rocky,” but rather to recommit with new energy to reaching a mutually-acceptable agreement – because the cost of failure is high.

In addition, the Collaborative Process typically utilizes a team approach, bringing the skill sets of specially-trained mental health professionals and financial professionals to the settlement table to supplement the legal skills of the parties’ attorneys.  By contrast, Mediation  utilizes a neutral facilitator to assist the parties in reaching an agreement that works for both of them.

If you would like more information about Mediation and/or the Collaborative Process in your unique situation, please contact any of the attorneys in the “Find a Collaborative Professional” section of this website.

By Karen Keyes, JD

Categories: Articles

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