Collaborative divorce and divorce mediation are both types of alternative resolution that can be useful in Washington state divorces. Though each aims to resolve divorces amicably, they are different. If you are embarking on the divorce process and unsure whether collaborative divorce is right for you versus divorce mediation, here is what you need to know before deciding.
What is divorce mediation?
Many divorcing couples in Washington state choose to use a mediator to help them resolve their divorces. During divorce mediation, both spouses come together alongside their respective attorneys to discuss unresolved issues in their divorce. The mediator, who is neutral and does not take sides, will listen to the discussions and make suggestions to help the couple find common ground and reach an agreement.
It is worth noting that spouses can have a lawyer at their divorce mediation sessions if they choose to; although it is advisable, having a lawyer is not mandatory to mediate. Individuals choosing not to bring a lawyer to divorce mediation may, however, consult with a Washington state divorce lawyer beforehand to better understand their options and legal rights.
What happens during the divorce mediation session?
During a divorce mediation session, the mediator may also ask to speak to each party and their lawyer (if one is present to represent them) in a separate room. Again, the goal is to facilitate an agreement between the couples.
If the divorcing spouses fail to reach an agreement during divorce mediation, which can involve multiple sessions, they will need to go to court and have a judge decide on the outstanding issues. The parties’ lawyers, who were present during mediation, can remain as legal counsel despite the matter moving into the court system.
Going to court should be a last resort, as it takes decision-making out of the parties’ hands and puts it into the hands of a judge. Judges have limited time to get up to speed on the facts of the cases they hear, and there are many, so going to court can, in some respects, be a wild card. Whatever the judge says goes, even if the decision is unexpected and undesirable for one or both parties.
When divorce mediation is successful, with spouses resolving their issues during it, the issues they agreed to are included in the spouses’ divorce agreement, which each spouse’s attorney should review before they sign. Once both spouses sign the agreement, they are free to divorce.
What is collaborative divorce?
Collaborative divorce, like divorce mediation, facilitates amicable negotiations outside the courtroom. Both parties using the collaborative process for their divorce must hire a Washington state collaboratively trained lawyer to advocate for them individually. Signed agreements created during negotiations are binding, the same as in mediation.
Parties choosing to resolve their divorce using the collaborative method must agree to certain terms before starting. First and foremost, they must agree to treat each other with respect. They must also agree to act in good faith by disclosing all information relevant to their case. The parties must further agree they will not threaten one another with court action to gain leverage in their negotiations.
Finally, should negotiations break down, the spouses must agree to use the documents and communications obtained during the collaborative process for their court case. What they cannot bring to court is their current collaborative lawyers; since the collaborative process allows both sides’ lawyers to access information they might not be able to access in ordinary divorce proceedings, the spouses must hire new counsel moving forward.
Are divorce mediators used in collaborative divorces?
Given the advantages of collaborative divorce and divorce mediation, some might wonder if they can get the best of both worlds and use a divorce mediator in their collaborative divorce. The answer is no.
In a collaborative divorce, a mediator is unnecessary since the process is already driven by collaboratively trained attorneys working on behalf of their clients to resolve the case amicably. While additional professionals such as therapists, parent coordinators, and financial advisors may be consulted during a collaborative divorce, mediators are not.
Why choose one method over the other?
Your decision to proceed with mediation or collaborative divorce can rest on several factors. Those factors include how complex the matter is, how adversarial your relationship is with your spouse, and how much legal support you desire to resolve your matter. Below is an explanation of why you may choose each type of alternative dispute resolution.
Why mediation?
Mediation is best suited for couples who are already somewhat amicable and believe that, with the help of a third party, they will be capable of communicating and negotiating with one another to resolve their divorce. It is also better for couples who don’t have complex issues needing to be resolved, such as child custody, called residential time in Washington state, or a complicated financial picture to sort out.
One of mediation’s most significant benefits is its cost-effectiveness, given how few professionals must be involved. At a minimum, all a divorcing couple needs is one mediator. However, having a lawyer attend the mediation sessions or, at a minimum, review their draft agreement before signing it is prudent.
Due to mediation’s informality, it offers couples a lot of flexibility. Divorcing spouses can decide what to discuss over how many sessions, retaining much control over the process and the outcome. Usually, couples who rely on mediation to resolve their divorces tend to do so more quickly than those who use other methods, including collaborative divorce. Even so, collaborative divorce has its benefits.
Why collaborative divorce?
Collaborative divorce is more appropriate for couples requiring added legal support through negotiations. Collaboratively trained lawyers on both sides actively participate in the process, providing legal guidance throughout, something a mediator does not. A mediator does not offer legal advice.
Having counsel present in this manner is particularly helpful to couples with unresolved issues around substantial assets or parenting plans, for example. It is also helpful for couples who find it more difficult to get along and would benefit from a more structured format.
A collaborative divorce generally costs more than mediation due to the multidisciplinary team that can be involved, including financial advisors, child specialists, and therapists. Still, it is usually less expensive than going to court. This incentivizes divorcing couples to resolve their cases without resorting to judicial intervention.
Find a Seattle divorce attorney to assist you in collaborative divorce or mediation.
People embarking on a Seattle divorce may find the divorce process confusing, if not intimidating, given the various options available for resolution. If you are even thinking about divorce, speaking with a Seattle family lawyer to understand how the divorce process could look for you is helpful.
At Elise Buie Family Law, we know divorce isn’t easy. However, we recognize that alternative dispute resolution can make it easier. That is why, in some situations, we employ those methods first and have trained mediators and collaboratively trained lawyers on our team to support you.
Should alternative dispute resolution not result in a settlement, our team of Seattle divorce lawyers has extensive experience litigating cases and will work vehemently to prepare your case for court. Call us today or schedule a call with us here.
