Divorce Mediation, Collaborative Divorce and Litigated Divorce: A Comparison

There are many roads to divorce – not that you would know it from television and films, where divorce always, always means litigation and dramatic courtroom scenes, angry spouse shouting, lies and drama.  Litigation is rarely so exciting and it is far from the only option available to divorcing couples.  After all, emotional states vary, goals and personalities vary, and different couples require different levels and types of help coming to their final agreements.  While litigation is truly the only option for some couples, many will benefit instead from a Collaborative Divorce or Divorce Mediation.

In a litigated divorce, the sides are adversarial.  The disagreements between the parties are so fundamental and the issues at stake (property, support, custody) so complex, there is no possibility of simply coming to an agreement.  Litigation means each side hires attorneys, a petition is filed and a court date set.  Litigated divorces are the most costly and slowest way to divorce, and even relatively calm proceedings can be emotionally draining as the adversarial nature of a litigated divorce requires an attack sensibility, treating the other party as an enemy.

A step back from a litigated divorce is divorce mediation.  The mediation process involves a trained mediation attorney who acts like a guide between the two parties.  Individual attorneys may be involved as well for advice and counsel, but it is not a courtroom, and the spirit should be one of cooperation.  In a mediated divorce there is no requirement that the divorce laws of the region be followed.  As long as the final agreement contains no illegalities and is agreed to by both parties, it will go into effect.  Mediation is usually faster and less expensive than litigation, and can teach both parties vital skills for communicating in the future, such as remaining goal-oriented, staying future- and present-focussed, and maintaining a polite and respectful demeanour.

Finally, in collaborative divorce both parties know the general outline of how they wish to separate their lives.  They bring in attorneys and other experts and negotiate.  Since they already know the broad outlines of their agreement, there is usually no need for formal mediation.  They simply need experts to help them craft the legal language, vet each other’s statements and positions, and help resolve minor disputes along the way.

It’s important for any couple heading towards divorce to know the options available to them.  Assuming there is only one way to proceed can result in unnecessary expense, emotional pain and delay.

Can Mediation Work in a Communication Breakdown?

Often couples heading towards divorce dismiss mediation as an option for one simple reason: Mediation implies communication.  Some divorcing couples cannot stand to be in the same room with each other and cannot communicate in any effective way.  The damage is too severe and there is too much ‛water under the bridge,’ so to speak.  Couples in such a distressing and emotionally charged scenario think mediation is impossible due to their inability to communicate.

This belief is due to a core misconception about the mediation process.  Mediation is not about locking people into a room and insisting they talk out all of their problems – mediation is not therapy.  Mediation is actually ideal for couples who have trouble communicating; amicable divorces wherein the couples still communicate easily can often be worked out between the parties without much trouble.  Marriages ending in icy silence often end up in the courts – but litigation is designed to prevent communication, making things even worse.  Mediation is designed to benefit people having difficulty communicating with each other for several reasons.

First, mediation is designed to remove the emotional element and teach people how to work towards mutual goals.  Divorcing couples usually have messy, integrated lives – children, property, mutual friends – and will usually be involved in each other’s lives for decades to come.  A litigated divorce insulates them from each other and leaves them, post-divorce, with no ability to communicate, spelling disaster for those coming decades.  Mediation teaches couples the skills they will need to work through the many decisions that lie in store for them.

Second, mediation is much more structured than people assume.  The popular idea of two people screaming at each other while a harried mediation attorney takes frantic notes is far from the reality.  Experienced Mediators know to set up ground rules:

• That each person gets to speak without interruption,
• That politeness and respect be maintained at all times,
• That everyone concentrate on facts instead of feelings, and
• That all discussions be focussed on the future, and not the past.

These ground rules remove much of the antagonistic and emotional nature of the discussion, and couples who could not have a conversation before find it easy to negotiate under the canopy of mediation – and these ground rules can be carried forward into their post-divorce communications.

Mediation is not a magic bullet, but it is a powerful process.  A trained mediation attorney can discuss how mediation makes your future communication easier while guiding you to a mutual solution today.

When Mediation Is Not Mediation

When discussing mediation, most people have a tendency to focus on the clear benefits that have been proven time and again: The faster resolution, the lower cost, the less-combative atmosphere.  While these are all absolutely accurate descriptions of the mediation process, they are also describing what could be terms true mediation – a mediation course that is focussed on finding common ground and guiding the parties to a mutually satisfactory agreement that satisfies all problem areas.  Unfortunately there are attorneys – and clients – who instead view mediation as a cheaper way of litigating.  They attempt to make the mediation process about each side’s legal positions, and not about working together towards solutions.

The key fact to remember about mediation is that neither party is under any obligation to adhere to any aspect of the law.  It is a private agreement between the two parties, and as long as the agreements and decisions they make together are not in and of themselves illegal, there is no need to follow laws covering divorce or division of assets.  The mediation room is not a court room.  This is often forgotten by both clients and attorneys, who will ‘get stuck’ on legal points and insist that a demand or request cannot be granted because a judge in the courtroom would never allow it – and this may be true, but if both parties agree peacefully to the item, that is moot.

Sometimes, the attorneys on one side will seek to subvert the mediation process this way, attempting to argue their case in front of the mediator.  Inexperienced or incompetent mediation professionals may allow it, but the key thing to remember is that attorneys work for the parties involved in the divorce and can be directed in their actions.  The key difference between mediation and the court system is that the mediator is not a judge.  Where judges render final decisions – often if not always with some sort of bias, as true objectivity is impossible to achieve – mediators only guide.  It is the divorcing parties who ultimately create and agree to a compromise.  As a result they can forge any kind of agreement they wish, whether the mediator – or their own attorneys – approve or not.

If you have no interest in compromise and seek only to ‛win’ the divorce against your partner, mediation is not the right course.  No responsible attorney should suggest mediation as a ‛cheaper litigation vector.’  It is recommended that a person who needs help deciding between strategies should contact an experienced professional mediation attorney to get your questions answered.

Taking the Sting Out of Divorce with Mediation

Even when the dubious adjective ‘amicable’ is appended to it, divorce is rarely easy and never enjoyable. Divorce always represents the end of something, and that usually means there was a happier time, a beginning when everything seemed wonderful and plans were made. Divorce usually means those plans never came to fruition and along the way emotions have soured and where there was once affection and mutual support there is often antagonism and spite.

It’s certainly not uncommon for couples undergoing a separation to have extreme difficulties communicating. A common pattern is agreeing to talk calmly and then falling into familiar angry ruts when actually in the same room. This causes an endless cycle of unproductive and often hurtful arguments that get nowhere. At the same time, many couples are reluctant to take their divorce to the courts because the process is very slow, extending everyone’s misery. For couple who are filled with personal resentments and what feels like perfectly justified anger, the idea of allowing a faceless court system to grind away at the proceedings for months (a typical courtroom divorce takes 450 days) is simply intolerable.

That’s where mediation comes in. Mediation’s strengths in divorce situations are manifold:

It’s Mutual. Often in divorce the negative feelings and resentments make any discussion a quick trip into argument and inflamed emotions, and it can feel like the two parties are always on opposite sides of every issue. Mediation is a mutual agreement, meaning it begins in a spirit of resolution and cooperation and carries that spirit throughout.

It’s Fast. Mediation cuts the resolution time frame from 450 days on average to 110 days on average. It’s also much more affordable; a typical divorce in the courts costs upwards of $10,600, versus just $800 for mediation cases.

It’s Non-confrontational. Courts exacerbate existing divisions between people because they are by their very nature confrontational. There are sides and strategies, and someone must win and someone must lose. Mediation removes that structure and concentrates instead on finding common ground with a trained, experienced and objective mediation specialist guiding the way.

Not everyone is destined to remain friends after divorce or even enjoy each other’s company. But this doesn’t mean divorce has to become an emotional warfare. If the inevitable has come to your marriage and you struggle to have a civil conversation with your partner, mediation may be the ideal way to find solutions without going to war.

Divorce: Difficulties Couples Face with Equitable Distribution

Divorce is one of those strange beasts in modern society that no one ever expects to have to deal with or live through. No one gets married with the idea that it is a temporary situation – we all marry with the best intentions and the noblest of goals. This is why so many spouses are willing to make sacrifices for their partners – the spouse who works to put their partner through school, the spouse who agrees to move to an area they find uncomfortable, the spouse who give up a career – without hesitation or thought about how these decision may affect them post-divorce, because in their minds there can be no ‘post-divorce’ period.

This is often the root of a shock when divorce proceedings are initiated, because people always believe that their feelings and non-financial contributions to a marriage will count for much more than they do. The fact is, marriage is a contractual partnership in the eyes of the law. The law does not require proof of emotion or religious approval for a marriage – it is simply a legal arrangement between two adults, and its dissolution is treated as such in the courts. This means that emotions and more diffuse sacrifices may not be given much weight when the divorce proceedings begin.

This cuts both ways, of course. The courts will always use the lifestyle currently enjoyed by both spouses as a guideline, which means that a spouse who is solely responsible for the finances of the marriage may find themselves in the position of supporting their former partner. This is because the courts will attempt to maintain the lifestyle for both partners regardless of the relative financial contributions of each.

When contemplating divorce or if you suspect your spouse is contemplating divorce, the first and most essential preparatory step is to consult an attorney or qualified mediation expert. Whether you desire the divorce or not, you must prepare yourself for the possible scenarios you will face, whether you are the breadwinner and facing spousal support for years to come, or if you are financially dependent and facing the possibility of having your non-financial contributions downplayed. Both situations are difficult to accept and the solutions the court offers can frequently seem harsh or cold.

This is why preparation, both emotional and practical, is essential. If you are contemplating divorce or fear you will be involved in an unwanted divorce, it is important that you contact a mediation attorney immediately to begin investigating your rights and your options.

What Happens With Your Health Insurance After Divorce

Aside from being an incredibly emotionally stressful time in someone’s life, divorce is also incredibly complicated in terms of the legal and financial considerations it brings on. There are so many aspects to divorce to consider it is unsurprising that many are overlooked. One commonly overlooked facet to a divorce that involves a non-working spouse is the question of health coverage: If you were receiving health insurance benefits through your spouse’s employer-provided health coverage, you must act quickly if you are to continue those benefits in the short term during and after a divorce.

Under the Consolidated Omnibus Budget Reconciliation Act (COBRA), a qualifying event such as divorce which causes a loss of health coverage allows the qualified beneficiary – the non-working spouse – to maintain their coverage through the group plan. COBRA is a Federal law and only applies to businesses with more than 20 employees; for smaller businesses State law prevails, but this is usually very similar.

In order to maintain health benefits in the case of divorce, you must send notice of your divorce decree to the plan administrator or Human Resources department within 60 days. Once received, a notice will be sent to the beneficiary within 14 days. Under most state law they then have 30 days to secure their coverage based on the notice information, and under Federal law they have 60 days. It is absolutely crucial that claims be made within that time period. Failure to make this claim can be interpreted as waiving your right to coverage.

Once the claim is made and processed, most state and Federal law allow the beneficiary to keep their coverage for up to 3 years at a cost of 102% of the premium, with heavy cost increases if the coverage also involves children. COBRA and similar state programs are designed to ensure coverage, not to ensure economical coverage, and are usually utilized as short-term solutions. Few people maintain COBRA coverage for the full three-year period they are allowed to do so. Instead, COBRA is designed to maintain coverage while alternatives are explored and chosen.

Knowing all of your rights and options before, during and after a divorce is essential. Many people in a marriage leave certain duties to their spouse, such as balancing the checkbook, paying bills, or maintaining health insurance coverage and are at a loss when suddenly they must look out for themselves. Expert advice from an attorney with mediation experience is crucial in informing individuals of the resources and services available to them even as their legal partnership is dissolved. 

Prenups: You Want Me to Sign What?

A prenuptial agreement – or ‘prenup’ – is one of those legal products that everyone is familiar with despite never having seen one. This is thanks to Hollywood and the gossip media, which has for decades now given us tantalizing portraits of the rich and famous, including the occasional sordid story of a jilted spouse left with nothing due to a hastily signed prenup or a marriage proposal that falls into tragedy because one partner refused to sign a prenup. We all know what a prenup is, but very few of us expect to actually ever need one, because we think a prenuptial agreement is only for rich folks.

This may be changing. Recently, the American Academy of Matrimonial Lawyers (AAML) conducted a poll of its members and discovered that three-fourths of their members have seen an increase in prenups in their clients – about half of these initiated by women. The times certainly are slowly changing.

There are actually many good reasons for anyone, even people of modest means, to enter into a prenup when getting married: Some folks wish to protect assets so they can be left to children from a previous marriage, others might need to separate business interests from personal finances. The key thing to remember about prenups, and something which may explain their rising popularity among ‘normal’ folks, is that they work both ways. Remember the following:

• A prenup is a contract. As a result, they can be negotiated to be as much in your favor as the initiating party. Just because you are presented with a legal document does not mean you must sign it as-is. You need to review it and make sure your own interests are protected.

• Always hire a lawyer to review a prenup, no matter how much you trust your soon-to-be spouse. A contract can be written poorly or contain unintended consequences.

• Don’t forget the prenup doesn’t affect you, it affects the future you. Whether weeks, years, or decades later, the contract will affect you in the future, so consider your future. What resources will you have in the event that your marriage ends? How will your contributions to the finances of your marriage be recognized? Make sure you consider your retirement when reviewing the prenup.

A prenup simply removes uncertainty, allowing a relationship to proceed uninhibited. And if that relationship founders for any reason, both parties will likely be glad they signed!

Why Celebrities Choose Divorce Mediation

As a society, we consider a complete surrender of privacy as part of the price of fame. So when a high-profile celebrity couple makes the difficult decision to seek a divorce, it becomes open season on them as every public admission, accusation and declaration (and in a litigated divorce, all finances and other details of your lives together) is gleefully plundered for its dark entertainment value.

However, if you stop and think about it, you might notice that while the occasional juicy celebrity divorce does entertain us in the tabloids from time to time, for the most part you don’t hear a lot of the private details of celebrity divorce. Consider Tom Cruise and his three marriages: Considering all of the rumors that surround Cruise, one might imagine his divorces to be epics of revelation and gossip. Yet you didn’t hear anything about Cruise or his former wives (Mimi Rogers, Nicole Kidman, and Katie Holmes), did you?

This is because Cruise, like most high-profile celebrities, chose divorce mediation instead of litigation. Mediation has advantages for anyone entering into the difficult and emotional decision to end a marriage: It’s a less combative process, it keeps control over the arrangements in your hands instead of the courts, and it is often a faster and simpler process. Mediation has one other advantage that appeals to celebrities of all stripes: Privacy.

In a mediated divorce the private business of a marriage remains private, because nothing is entered into the public record. This allows people like Tom Cruise, whose every private detail is valuable to a voracious culture of celebrity gossip, to maintain their privacy and their dignity. Let’s face it; the end of a marriage is a difficult and messy thing, for anyone. Most of us at least have the security of knowing no one is going to root through court records for juicy details about our lives. For celebrities who are followed by photographers wherever they go, this sort of control is vital.

For the rest of us, mediation still has every advantage over litigation. If anyone values the future well-being of their families, they should consider a process that will allow them to resolve their differences amicably. Instead of entering into an emotionally tumultuous and expensive process which takes control away from you, any couple considering divorce should try mediation instead. In the end, privacy and dignity is worth something, and arrangements negotiated in a spirit of cooperation and mutual respect as opposed to hostility and litigation is always preferable.

Three Reasons Why Child Custody Mediation Is For You and Your Children’s Best Interest

Divorce is never an easy option and many couples avoid the decision for too long, trying, for all the right reasons, to make things work.  Often one of the main ‘right reasons’ is the children the couple share, in the belief that a stable, traditional nuclear family is always a better option than divorce.  People see divorce as a failure.  This can lead to prolonging a bad situation; the fact is, it’s better for children to see their parents working together in a civil and respectful fashion apart than it is for them to see their parents in bitter conflict together.  That’s where mediation comes into play.

If the spouses agree to attempt an amicable dissolution – the so-called ‘good divorce’ – involving mediation, there are clear benefits for any children involved:

 1.  Custody and visitation decisions can be made by the family, not the court. 

The court will seek the best interests of the child and assign custody based on the information available.  Data points never tell the entire story, however.  If the parents are able to negotiate in good faith and acknowledge each other’s role and value in raising their children, they can craft a custody arrangement that stems from the intimate knowledge of their children’s needs and desires.

 2.  Children are insulated from further conflict. 

Mediation, when entered into sincerely, immediately transforms an atmosphere of constant tension into one of cooperation.  While the events may still be upsetting or traumatizing to children – who are almost always emotionally unprepared for divorce – at least they will be calm, with disagreements and conflicts resolved in the mediation process instead of through emotionally-charged arguments.

 3.  Mediation maintains the parent-child relationship. 

Too often in disputed custody cases the children are asked to make decisions and choices, or to render opinions they are not emotionally developed enough to handle.  Mediation keeps the decision-making in the hands of the parents, where the children expect it to be.  Even if they are unhappy with specific decisions or the overall situation, this maintains the natural balance of power in the family and this is much healthier than asking young children to make decisions they are totally unprepared to make.

When children are involved in a divorce, mediation becomes even more relevant.  Any responsible parent involved in a separation from their spouse must at least consider the benefits of an attempt at mediation, if only to protect their children from the unfortunate side effects of a bitter custody dispute.

Should Mediation Be Mandatory For Divorcing Couples?

Increasingly, divorce mediation is becoming mandatory before couples can take their divorce to the courts.  More and more court systems are implementing this requirement as they see an increase in couples using the courts as negotiating forums or simply as launching pads for attacks and grudge resolution.  Mediation is seen as a way for couples to get this ‘out of their system’ at minimum and possibly resolve such differences without having to tie up the court system at all.

As more and more courts take this step, the obvious question is, should this be mandatory for all divorcing couples?

On the one hand, divorce mediation, when pursued, has a 90% success rate in mutual settlement agreements that keep everyone out of court.  This means much lower costs for both parties, a much faster resolution, and often a non-adversarial atmosphere between spouses.  When approached in an objective, positive manner, divorce mediation can help to identify the needs and concerns of each spouse, and then guide the couple towards solutions that are mutually acceptable and beneficial.

Even if court proceedings prove inevitable, divorce mediation can help each party to understand the different types of divorce proceedings and identify which is the best for all concerned – themselves, their offspring (if any), and other relations or friends.  Being able to understand their needs and the process as a whole can bring increased focus and speed to the actual court proceedings.

On the other hand, some worry that in divorce cases where one spouse has superiority over the other (financial or otherwise) or where problems are simply overwhelming, the mediator may not be qualified or able to truly bring the discussion down to a reasonable level or offer true solutions outside of legal rulings.  The worry is that divorce mediation in these cases may create a false sense that a solution is guaranteed and their failure may make court proceedings even more difficult and divisive.

Naturally, lawyers are dubious about the possible success of mediation over more adversarial divorce approaches, especially when complex financial, property or custody issues are at hand.  But divorce mediation agreements are always vetted and advised on by attorneys for both parties.  Often the spouses themselves are the best qualified to know what they must have as opposed to what they merely want, as well as the best interests of children or other parties.

In the end, the success or failure of divorce mediation depends greatly on the spirit and attitude the people involved bring to it.  Couples forced via court order to engage in mediation may not make a good-faith effort to listen and respond honestly and objectively, thus hurting mediation’s chances of success.  In these cases, mandatory divorce mediation would be a failure before it even begins.