“Collaborative Divorce – that’s like mediation, right?”
I can’t count the number of times I have heard that question. Collaborative divorce has been in Texas over 15 years, but people still don’t know what it is.
It’s true that mediation and collaborative divorce are both “Alternative Dispute Resolution” methods. They each provide a path for divorcing couples to avoid having a judge or jury decide how they will split their property and parent their children. Both are private and take place in offices away from court. But mediation and collaborative divorce are not the same.
In Texas, mediation is most often set for one full day, usually months after the divorce starts.
The divorcing couple meets the mediator at the mediation. The mediator is neutral, unlike the lawyers hired by each spouse. So the mediator cannot give anyone legal advice. The divorcing parties are mostly kept in separate rooms with their attorney. The mediator goes back and forth between rooms, trying to help the parties reach agreements. The mediator relays requested information and settlement offers.
A successful mediation ends with a binding agreement. But the day is long, exhausting, pressure-packed, and scary. The divorcing spouses don’t talk to each other, since all communication goes through the mediator. Threats of what will happen at court if there is no settlement are common. People often make important decisions based on lack of information and fear.
A collaborative divorce begins with two specially trained collaborative lawyers. There is also a neutral financial professional and a neutral mental health professional. This “collaborative divorce team” is on board from the beginning. The team guides the clients through the divorce at the clients’ desired pace. Instead of one long day of negotiations, there are shorter meetings of 1 – 2 hours each over weeks or months. Meeting topics are agreed-upon in advance so there is time to prepare. Some meetings include the clients and the collaborative divorce team. Others are attended by just the clients and neutral professionals. All work is focused on reaching agreements. All needed information is voluntarily exchanged.
The collaborative team allows for division of duties according to expertise.
Collaborative lawyers will always give their client legal advice. But neutral team members can do things for both clients that, in a non-collaborative case, each lawyer would need to do separately. The financial professional reviews all financial data, creates property spreadsheets, and assists with post-divorce budgets. The neutral mental health professional is the communications coach and helps the clients create a post-divorce parenting plan.
Mediation and collaborative divorce are both used to settle cases away from court.
But collaborative divorce provides added benefits. People are well-educated about their property and debts. Decisions are not made under pressure. They are based on goals and information, not fear. Parents end up with customized parenting plans appropriate for their family. And they learn how to communicate with each other. They are better able to handle future issues on their own, long after the collaborative divorce team is gone.