Explaining the Terms
Dan called with the information that he and his husband were getting divorced. They wanted an amicable process and they had heard about “collaborative mediation”. Is that something I can help them with, he asked? Here is a bit of our conversation:
Thank you for calling. It is important to choose the process that will work for your family. I focus on processes that keep you and your spouse in charge of the decision making. Tell me where you are in the process – have you filed anything? Have either of you talked to attorneys?
We haven’t filed, we wanted to get more information first. I haven’t met with an attorney, we don’t want to go to court, Dan said.
I support your goal to stay out of court. Sometimes putting your case in front of a judge or commissioner is necessary but in the vast majority of cases, people can resolve their own issues and stay in charge of the result. You mentioned “collaborative mediation” and those are terms that mean something specific in my practice. I’d like to talk with you in more detail about what Collaborative Process and Mediation look like. Can I schedule you for a 30-minute consultation? I don’t charge to explain these processes and one, or both of you can participate. I like to do the consultation in person but we can also do it by phone or Zoom video conference.
Sure, that would be great. Let me talk with my husband about his availability. Do you have any time available on Monday?
When I meet with Dan and his husband, we’ll talk about the Collaborative Law Process and Mediation as well as other ways of resolving their divorce issues. In this post, I’m going to focus on the terms “collaborative” and “mediation” because they can be confusing and they mean something specific in my practice.
Mediation
“Mediation” is the process of resolving disputes with the assistance of a neutral mediator who will facilitate a conversation between the parties. The mediator will help the parties identify their goals as well as the needs and interests of each family member, including the children if the couple has children. Issues will be identified and discussed with the mediator managing the conversation so that both parties are heard and understood. It is important that both spouses feel safe to speak about their needs and interests and the mediator create an environment where that is possible.
Most often, when I work as a mediator, I will meet with both spouses together in the same room. We’ll have a series of meetings to identify issues, gather information and discuss resolutions. Sometimes it is helpful to bring other professionals into the process. For example, we might want a child specialist to meet with the children so their needs are better understood. Or, we might want a financial neutral to assist with gathering and analyzing financial information. The parties are committed to transparency and their goal is a win/win resolution. The needs and interests of each party and the children are considered and accommodated to the extent possible with the family resources.
Settlement Conferences
You may have heard about mediation as a process where parties are separated into different rooms and each has an attorney present. In this style of mediation, the mediator “shuttles” offers back and forth. The mediation lasts as long as it takes to reach a resolution. Often an entire day. I think of this as a settlement conference rather than mediation. It usually takes place shortly a month or two before parties are scheduled to go to trial and tends to be a more adversarial win/lose process. Attorneys often remark that if both parties go away unhappy from this style mediation then it has been a success.
Collaborative Process
Both of these processes are different from Collaborative Process which is a team-based approach to resolving conflict. Each party is represented by an attorney who should be specially trained. Minimum training for Collaborative professionals includes mediation training as well as additional training on the team process. In addition to the attorneys, the Collaborative team will generally include a coach and a financial neutral. The roles of each team member are more fully discussed in other posts. In this process, the parties meet with attorneys, the coach and the financial neutral individually for parts of the process. Much of the negotiation work is done with the parties and both attorneys as well as other team members meeting together. The whole team supports the parties’ goal of reaching agreement. Mediators are not used in this process because the attorneys and the other members of the team are all trained in mediation and can bring those skills to the process.
Choosing a process that is right for you is important. Here are some things to consider:
- How effective is communication between the spouses?
- How comfortable are you with saying what you need?
- Do you feel safe in your relationship?
- Is minimizing the impact of separation on your children a priority?
- Can you open your mind to perspectives other than your own?
I can help you understand these process choices and identify which will work best for you. Whether you come together or separately, a process consultation is the place to start. Not all attorneys will discuss all these options with you. Attorneys who focus on litigation generally will not discuss process options. Attorneys who practice the Collaborative Process are obligated by statute to talk to you about options.