A Few Alternatives to Divorce Litigation: Mediation and Collaborative Law

By | 2018-06-25T10:51:10+00:00 June 25th, 2018|Collaborative Law, Divorce, Mediation, Wellness|0 Comments

Nobody heads into a marriage expecting one day to divorce, but statistics say that the odds are against us. If your marriage has broken down and you are considering a divorce in Massachusetts, it is important that you research all of your options before moving forward. Though divorce can be an acrimonious and bitter process, there are ways to manage your divorce that allow you to check your negative baggage at the door, saving you from full-blown, expensive litigation.

Mediation 

Divorce mediation is a cooperative arrangement in which a certified mediator—a neutral third-party—helps the couple come to an amicable agreement regarding their division of assets, support, and child custody decisions.  Divorce mediation in MA is an option to consider when the divorcing parties are still able to communicate, or are in basic agreement about how their assets should be divided and support allocated. When a couple elects mediation, there are no lawyers present (although this is not a rule, and there can be exceptions)- only the certified mediator. The mediator may also happen to be a lawyer, but will not be able to provide legal advice to either party. The parties should consider each hiring their own lawyers for legal advice. In some cases, mediators may require that the spouses each have their own attorneys before starting mediation. The selected mediator should be mutually agreed upon, and their job is to help the spouses come to a mutually satisfactory resolution. It is important to note that the mediator’s job is NOT to provide legal advice, or act as a judge. When the mediation process is successful, the divorcing couple can avoid the emotional and financial expense of litigation.

Collaborative Divorce 

For many couples, mediation may not be an option.  You know your situation best, and the last thing you want to do is spend wasted time and effort trying to mediate your divorce when you both need the representation and assistance of lawyers to come to a resolution. For these couples, “collaborative divorce” that might be worth considering.

Collaborative divorce in Massachusetts (and many other states) came about as a way to avoid confrontational courtroom litigation and maintain a sense of civility between the divorcing parties.  As its name implies, a collaborative divorce starts from a position of positivity in choosing to working together, rather than the adversarial stance common in a litigated divorce. The term “collaborative” is not just a loose term for working together, however, but a specific protocol for the divorce that both spouses are contractually agreed to follow.  As with a traditional divorce, each spouse will still hire his or her own attorney, but the attorney will be specially trained and certified in the collaborative divorce process.

A series of meetings will take place to work out the details of the divorce, and  the goal is to reach a divorce agreement peaceably, without the need to engage in costly litigation that can lead to increased hostility and further fracture the family.

Of course, the collaborative process too can result in a dead end, in which case you’ll have no choice but to turn to traditional litigation.  This is where things can get tricky- If the collaborative process is not successful, you will have to seek new legal representation, as your collaborative attorney cannot represent you in your litigated divorce.

When it comes time to choose your representation, be sure to ask plenty of questions about the mediator or attorney’s experience and style.  You should feel a basic level of comfort and trust and comfort with the individual as he or she will be the one helping you navigate through some very important, life-changing decisions.

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