Couples going through the process of divorce and hoping to avoid litigation frequently turn to alternative dispute resolution. Non-litigation settlement strategies are often effective for couples striving to maintain a respectful relationship with each other after the divorce, and couples looking to minimize the negative consequences of divorce impacting their children. Issues amenable by non-litigation settlement strategies include custody and visitation, child support, spousal support, and property divisions.
Divorce mediation and collaborative divorce are the two kinds of alternative dispute resolution models often used by couples going through divorce. The process of divorce mediation requires that the divorcing parties hire an independent, neutral third party who will bring the spouses (and their attorneys, if hired) together to aid them in reaching an equitable divorce settlement. In a collaborative divorce, each spouse will hire their own lawyer and the two attorneys and the spouses will negotiate directly with each other without resorting to litigation.
Although divorce mediation and collaborative divorce have different approaches, their goal is the same: to allow couples to reach mutually satisfactory divorce settlements instead of judge-imposed decisions.
Collaborative divorce fees tend to be about a third the cost of typical litigation, though the expenses can increase if there is a need to hire outside professionals. For example, when valuing a spouse’s business, if the attorneys reach an impasse or lack the expertise to address a specific issue and make a fair decision then a financial expert may be called in to assist. In a collaborative divorce, the spouses will usually split all costs and fees.
Similar to collaborative divorce, during mediation the parties will split the mediator fees. Unlike collaborative divorce, mediation does not require that the divorcing parties hire attorneys. Mediator’s fees can vary, often depending on the complexity of the divorce and issues at hand.
Collaborative divorce is unique in that there is a built-in motivation to settle. During the process, if the divorcing parties are unable to reach an agreement and the dispute proceeds to litigation, the attorneys on the case must withdraw from representation. The parties must then hire new legal counsel and will have to pay additional fees. Participants of collaborative divorce often sign agreements which include provisions against bad faith negotiations. Similar agreements can be signed prior to mediation sessions, but in collaborative divorce they have a different impact. During collaborative divorce proceedings, attorneys give up most of their adversarial duties and instead have a more resolution-driven focus. Mediators do not rely as heavily on the conciliatory nature of the negotiation.
The approach to use is determined by the unique circumstances of your case, such as your individual preferences, and the availability of good mediators or collaborative divorce attorneys. One of the strengths of a non-adversarial process is that the law is only a guidepost, not a prescription, and you are free to decide what actually will work for you.
- Spouses are represented by collaborative attorneys
- Spouses and their counsel sign a no court agreement.
- Spouses and attorneys negotiate in four way meetings
- Less expensive and more efficient than litigation
- Informal and flexible
- Neutral person (mediator) helps you negotiate
- Mediator has no power to decide the case
- No obligation to hire a lawyer
- Less time consuming and expensive than litigation
- Informal and flexible
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Partner at John F. Schutz, P.L.
Representing clients exclusively in family law cases for the past 24 years, Mr. Schutz is widely regarded as a marital and family law expert. He is Board Certified in marital and family law by The Florida Bar. As a Fellow of the American Academy of Matrimonial Lawyers (AAML), Mr. Schutz is committed to elevating the standards and improving the practice of family law.
Latest posts by John Schutz (see all)
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