Can Mediation and Collaborative be used in tandem?
Collaborative Divorce is a form of dispute resolution for divorcing couples which provides a highly specific roadmap for negotiation. The parties focus on their goals and interests, gather all the relevant information, then creatively seek options for each issue in conflict. While this model is structured and self determinative, it also is fluid, which allows for additional negotiation tools to be integrated into the model as needed.
Mediation is an example of such a tool.
In mediation, an agreed upon neutral party who is specifically trained in both mediation and collaborative divorce and who is not otherwise a member of the Collaborative divorce team (i.e. parties, their attorneys, financial professional and mental health professional) is invited to assist the parties in resolving one or more issues remaining in conflict. The mediator continues the focus on each party’s goals and interests, and the parties remain the decision makers, but mediation expedites and intensifies the negotiation roadmap.
Mediation can be used to resolve a single issue at any point throughout the Collaborative divorce, or to resolve all issues if the parties reach an impasse at the end of the collaborative divorce process.
For example, the parties may be having difficulty resolving a complex issue such as the value of a family owned corporation, and they are unable to move forward with division of their remaining assets until that value has been agreed upon. A mediator can step in, focus on this single issue and lead the parties to a creative and mutually acceptable resolution of the value which then allows them to continue with the Collaborative Divorce process. Parties may also wish to use mediation to address an important issue related to their child, such as a specific educational or medical need. Once the parties resolve the child’s critical issue, they are able to more comfortably focus on their remaining negotiations.
Mediation is also a powerful tool in those rare situations where parties reach an impasse in the collaborative divorce process and thus face the perils of litigation.
The mediator can facilitate resolution during an intensified negotiation process which provides the parties with one last opportunity to avoid the inherent risk of the courtroom, the need to retain new counsel, and all the associated financial and emotional costs. This need for end stage mediation may arise in various circumstances including limited financial resources, unreasonable expectations of a party, or simple negotiation fatigue. Research indicates that the involvement of a newly engaged neutral, with a fresh perspective, can be exceedingly helpful at this phase in the collaborative divorce process.
A recent survey among collaborative attorneys also indicates that mediation is successfully being integrated into Collaborative divorces on an increasing basis, and parties are recognizing mediation as an additional cost effective tool to complement but not distract from the Collaborative divorce model.