- Q. Isn’t collaborative practice just mediation with a different name?
- A. Both are considered as a way to approach divorce through Alternative Dispute Resolution but that is where the comparison stops. Mediation is a process where a mediator or mediators help the couple come up with their own solutions. The mediator may or may not be an attorney. Even if they are legally trained, a mediator is not there to give legal advice but rather to guide.
The collaborative attorney is hired to represent and advise their client. This involves giving the client legal advice as well as an understanding of the law and what a likely outcome of their case would be if they were to go to court. The collaborative lawyer is an active advocate for his/her client – advising them every step of the way but in a non-adversarial way. The collaborative process also has the benefit of bringing in neutral experts to evaluate the couple’s finances or appraise property.
Finally, and this is my opinion only, the collaborative process levels the playing field. By this I mean that if one person is very dominating, he/she could use that dominance to take over a mediation session. The collaborative process doesn’t allow for that sort of take over as the attorneys are charged with the obligation to keep their own clients in line.
- Q. How many meetings will there be and how long are they?
- A. The number depends on several factors including the availability of the attorneys and clients, how motivated the clients are to come to an agreement, and the complexity of the issues. The average is probably six meetings of two to three hours each.
- Q. Is the process always successful?
- A. No, some cases do not succeed for a variety of reasons. It is important that before recommending the collaborative process the attorneys should evaluate whether or not their client is capable of compromise. Someone who has a list of objectives he/she wants to achieve and won’t consider any other options is not a good candidate for the collaborative process. The process might also fail if the couple can’t communicate in the four-way meeting.
- Q. I know my wife will bring up all the bad things I have ever done in our marriage. How will that be handled?
- A. Her attorney will remind her that the role of the group is to work on going forward with re-structuring of the family, not to sort out the problems of the past.
- Q. Can the collaborative process be successful in cases where there has been adultery?
- A. If one of the parties has committed adultery and the other knows about it there is no reason why they can’t settle their issues through the collaborative process. What cannot happen is that information is withheld from the other side. It is especially helpful in these cases to have enlisted the help of a collaborative coach who can work with the couple in dealing with a very difficult issue. Both parties need to understand what the legal ramifications of adultery would be if they were to go into litigation. Among other things, the party guilty of adultery might be barred from receiving spousal support.
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