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Collaborative Family Law vs. Mediation

Today, couples can consider a variety of options on how to obtain a go about filing for divorce. In the past, couples seeking to avoid litigation, have routinely used the mediation process to come to an agreement about how marital assets and debts would be distributed upon divorce. Now, couples can also use the collaborative law approach to help negotiate a marital settlement agreement outside the traditional divorce process.

Read on to learn more about the benefits of using mediation and collaborative law to settle your marital dissolution and which approach is best for you and your spouse.

How Collaborative Family Law Works

Collaborative divorce, also referred to as collaborative law, is an effective way to resolve marital disputes outside of the courtroom. It occurs when you and your spouse, along with your attorneys, sign a written pledge (called a participation agreement) to reach an agreement regarding the terms of your divorce.

The process starts when you and your spouse retain separate counsel for representation. You will meet with your attorney to discuss the issues involved in your particular case. Your spouse will meet with his/her attorney to discuss the issues as well.  The attorneys will then schedule a meeting for the four of you to get together and discuss the issues.  Typically, at the first meeting, the participation agreement is read and reviewed so that each party understands the process.  The key is that you are both committed to a process of good-faith negotiation, and that you will stay in that process (and out of court) until you have come to a comprehensive written agreement.  In the event that either party decides that they wish to go to court the process automatically terminates.  When the process is terminated, your attorneys cannot represent you in any court proceeding.

Your attorney’s will schedule times to meet in order for all parties to come together and negotiate the terms of the agreement.

Once an agreement is reached, it will be incorporated into a marital settlement agreement which will allow you to forego most divorce procedures.  One of the attorneys will prepare and file the necessary paperwork to obtain a Judgment of Divorce.

The Advantages of Collaborative Family Law

There are several benefits of using the collaborative divorce process such as the following:

  1. Both parties can negotiate a settlement outside of the restrains and demands of the court.  Like mediation, the parties have control of the process.  This is not true in court;

  2. The collaborative family law process is more cost effective than traditional litigation;

  3. You can use collaborative professionals to assist in resolving any disputes pertaining to parenting time and support.

The downside of the collaborative approach is if it does not work, then both parties will have to obtain new counsel and start from the beginning in the traditional divorce litigation process. This will cost both parties additional time and money.

How Mediation Works

Mediation involves the process of using a neutral mediator to help you and your spouse reach a marital settlement agreement. It involves three participants: you, your spouse, and the mediator. You have the option to retain a trained professional to manage the negotiations concerning the distribution of property (including real estate, accounts, retirement benefits and any other property the parties may own), parenting time and support.  You will negotiate directly with your spouse regarding the terms of your marital settlement agreement while the mediator maintains a calm and neutral environment. At the end of the mediation process, a marital settlement agreement will be drafted in which you should have an independent attorney review. If the terms of the agreement reflect your intentions, both of you will sign it in the presence of a notary with a formal acknowledgement.  The settlement agreement will be attached to your final judgment.

The Advantages of Mediation

There are several benefits of using mediation such as the following:

  1. Mediation allows you to have a neutral mediator while you negotiate the terms of your marital settlement agreement;

  2. There is no obligation to retain counsel for negotiations;

  3. Mediation is quicker and less expensive than collaborative law when properly administered.

If you think mediation will not work for you and your spouse, then it may be in your best interest to pursue the collaborative law approach. Quick plus inexpensive does not necessarily equal the best option for you, or even a good option.  Any couple with a history of domestic violence is prohibited from mediating in the State of New York.  Additionally, you must be comfortable with sitting in a room with your spouse and a neutral third party and negotiating an agreement.  Many people find this extremely uncomfortable.

Which One is Right for You?

Both mediation and the collaborative law approach allow you to reach a marital settlement agreement outside the bounds of the courtroom. Mediation is the most affordable option for couples who do not have the financial resources for the collaborative law approach. Nevertheless, if you and your spouse do not have great communication skills, then the collaborative approach may work best for you.

If you would like more information on which approach to pursue, contact David Vallone. As a suffolk county divorce attorney, David can help you determine whether mediation of collaborative law is the best option for you. Call David Vallone at 631-676-7100 to schedule a free consultation if you are seeking information about filing for divorce.

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