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Rosemary Lepiane, Steve Paquette
One of the first decisions a couple must make when facing a divorce, is what kind of process to use – mediation, collaboration, or litigation.
Litigated divorces are known to be lengthy, costly, and stressful. While that may be the only route for some, others may prefer a less combative approach, especially when there are children involved.
Luckily, collaborative divorce and mediation are alternative dispute methods meant to decrease the stress and hostility of the divorcing process.
A common misconception about mediation and collaborative divorce is that these methods are only right for couples where there is little conflict. That is not necessarily true. Collaborative attorneys and mediators understand that conflict will always be present during a divorce and therefore, have the experience and skill to assist couples navigate conflict as it arises – seeking solutions that move the process productively forward.
Both collaborative divorce and mediated settlement offer benefits not typically found through traditional litigation, but it is important to know the differences between the two so you can accurately choose which is best for you and your family.
Since couples with children are never truly disconnected from one another, taking the divorce outside of a courtroom creates a way to maintain an amicable dynamic between parents, making for agreeable future interactions and preventing further harm to your children.
What is Collaborative Divorce?
The collaborative divorce method features a team, comprised of two specially trained collaborative attorneys and a neutral coach who is typically trained in psychology. The attorneys provide legal advice to their respective clients and are guided by a trained neutral who assists the parties as they seek mutually satisfactory solutions.
The goal is for the couple to come to a complete agreement resolving everything necessary for them to divorce, including a custody and parenting plan, the division of marital assets and debt, and provisions for the financial support of children and lesser earning spouse. When needed, mental health professionals, financial advisors, and other experts can join the process to provide neutral advice.
Pros:
- Better for children
- Gives couple more control over divorce terms
- More informal and less combative, leading to less anxiety
- Real time access to attorneys providing professional advice
- Access to mental health and financial professionals
- Private, out-of-court experience
- Tends to be less expensive than litigation
Cons:
- Both parties must retain an attorney
- Couple must come to a decision or will have to retain new attorneys for the litigation process
What is Divorce Mediation?
Divorce mediation is different from collaborative divorce because the couple does not need to retain individual attorneys to assist in negotiation. Instead, a mediator will act as a neutral, meeting with the couple and guiding them through the entire process. Thereafter, attorneys will be hired to provide further guidance and prepare the proper legal documents and agreement.
While the mediator could possibly be an attorney, they will not give legal advice during the mediation sessions but instead will offer general information and assist in creative problem solving. This arrangement allows the couple to make decisions based on what is best for their family in the simplest way, but requires work by the parties, often otherwise done by counsel.
Pros:
- Better for children
- Allows couple to create family-customized agreements
- More informal and less combative, leading to less anxiety
- Completely neutral environment
- Private, out of court experience
- Can be less expensive
Cons:
- Mediator will not give legal advice
- No attorney advocacy in negotiations
The Benefits of Alternative Dispute Resolution
Both processes come with many benefits including:
- Better for children
- Less anxiety
- Less hostility / confrontation
- Privacy
- Control
- A new family configuration to move forward
- Typically less expensive
Additional Notes
If you decide to pursue the collaborative divorce process, you should take extra care to find an attorney who has special training and experience in this area to ensure you will get the most out of the process. You should also know that while both negotiation processes occur outside of the courtroom, they both require the filing of documents to obtain divorce inside the court system. However, your issues will already be resolved and neither party will need to make a personal appearance in court.
Additionally, it is important to remember we do not expect collaborative divorce and mediation to be the best route for everyone. For example, these alternatives may not be appropriate for those who have suffered from domestic abuse.
We understand this is an important decision and we are here to answer any additional questions you may have. The Divorce and Family Law Group at Bousquet Holstein PLLC can help you to decide which option is right for you.
To schedule a consultation, please email our Divorce and Family Law Group or call us at 315-701-6310.
Rosemary Lepiane, Esq.
Rosemary litigates all aspects of divorce and has extensive experience with complex cases involving custody, child support, and pre and post nuptual agreements. As Vice President of the CNY Collaborative Family Law Professionals Board, Rosemary uses her unique mediation training to help her clients focus on realistic outcomes and creative solutions outside of the court system. With her extensive knowledge and experience, Rosemary can effectively represent clients in any divorce litigation, collaborative or mediation matter.
Steve Paquette, Esq.
With over 40 years of experience, Steve is well known as a powerful advocate for his clients and an outstanding negotiator. Steve is a certified fellow of the American Academy of Matrimonial Lawyers (AAML) – a position achieved only by a small, specially skilled group of divorce lawyers. He is also extensively trained in collaborative divorce and is on the Executive Committee of the CNY Collaborative Family Law Professionals.