Couples that seek to break up their marriages with no challenges of litigation often turn to alternative dispute resolution. The following problems, amongst others, are amenable to such settlement strategies:
- Child support
- Custody and visitation
- Division of Property
- Living arrangements
- Spousal support
The Imbalances of Power
Disputants frequently rely on mediators to offset power imbalances between parties. Such imbalances will be minimized, where an attorney is present at a mediation to represent the wife in this type of situation. Mediators often ask the participants, at some stage, to speak directly with each other, frequently as a means of releasing or "to get it all out." Even without lawyers present, mediators who employ proper techniques will continue to have the capacity to neutralize such imbalances. In a collaborative divorce, however, this concern is arguably less distinct since the attorneys are corresponding immediately with each other and act as buffers between complex personalities.
Balances of power are often impacted by attorney representation or the lack thereof. Mediators are not allowed to supply legal advice, but may supply legal information. Therefore, unrepresented parties may be at a disadvantage in a mediation. However, this is not an issue in a collaborative divorce.
Divorce Mediation and Collaborative Divorce
Two forms of alternative dispute resolution models, often used by divorcing couples, include divorce arbitration and collaborative divorce. In divorce mediation, the individuals hire an independent, impartial third party who brings the spouses together to assist them to reach a sufficient divorce resolution. A comparably new form of dispute resolution, in a collaborative divorce, each spouse hires their attorney, without resorting to litigation, and the two lawyers, as well as their clients, negotiate directly with each other.
Collaborative divorce, accessible in the majority of states, is also beginning to establish itself as a successful form of divorce dispute resolution, although divorce mediation has become a popular alternative to litigation. Further, just as the practice of arbitration is not unusual in numerous other areas of law, collaborative law is beginning to be utilized for numerous non-family law disputes, such as company and employment disputes.
Goals may be the same but Different Approaches
The underlying aim of both collaborative divorce and divorce mediation is to allow couples to reach mutually acceptable divorce resolutions in lieu of facing the unpredictable results of judge-imposed conclusions. While both resolution models have proved to work, a couple's decision may impact when deciding which would be most proper.
Motivation to Settle in Collaborative Divorce
One characteristic unique to collaborative divorce is the built-in motivation to settle. Particularly, the dispute proceeds to litigation, along with if the parties are not able to reach a resolution, the attorneys must withdraw from representation. When this occurs, the parties are required to hire new counsel and pay the additional fees.
Also, agreements that include provisions against bad faith dialogs are signed by participants to collaborative divorce. Such deals have a somewhat different impact on the discussion although similar agreements are occasionally signed before mediation sessions, in collaborative divorce. This is in part because lawyers participating in collaborative divorce have dropped, to an extent, much of their adversarial obligations in exchange for a more resolution-driven focus. In contrast, in arbitration, the attorneys may pick to withhold possibly materially important information and don't rely on as heavily the conciliatory nature of the negotiation.
Experts and Their Fee Structures
The overall consensus is that litigation, on average, is more pricey although few comparison studies are conducted with respect to the expenses of collaborative divorce. One study indicates that collaborative divorce fees usually achieve about 1/3 the cost of the typical litigated divorce. When there is a need to employ outside professionals, expenses will increase. For instance, if the attorneys lack the expertise to address a specific problem of the spouse's businesses including the value of one or reach an impasse, a financial expert may be kept for assistance. In a collaborative divorce, the parties typically divide charges and all costs.
Similar to a collaborative divorce, in mediation the parties split the mediator fees. Mediator fees can range extensively, frequently and sometimes exceeding $400 per hour, being as low as $100 to $200 per hour depending upon the complexity of the issues or the type of law involved. Many mediators have separate fee ranges for couples who prefer to schedule the entire time