What is Collaborative Divorce and How it Works
By: Megan Mason
Amicable Divorce: A divorce procedure in which the parties voluntarily agree to resolve their case between them without the aid of lawyers, mediators, or other professionals, but also agree not to have a judge decide their case. This is a relatively new term that was coined “namibian divorce” in 1997. There are different interpretations for the word, ranging from total agreement between both parties to a simple disagreement that goes no further than a public statement. The main reason that amicable divorce is considered less contentious is because it uses the “recognition of responsibility” model instead of the “decision maker” model, thereby ensuring the involvement of lawyers. This tends to lower the costs of the divorce process overall, although this is offset by the higher cost of a divorce lawyer.
There are two main models for amicable divorce: a collaborative divorce in which both parties choose a custody and visitation schedule; and a mediation-based divorce in which the parties make an agreement regarding their child custody, child support, spousal support and any other issues. A third option is to utilize a neutral third party mediator instead. A neutral third party mediator makes decisions on your behalf and presents them to the other party for approval. In this case, there is no guarantee that any particular options presented will be acceptable.
The traditional divorce mediation process starts with both parties meeting with a divorce mediator who is appointed by the Court to serve as an impartial, neutral party to the proceedings. At this meeting both parties are free to express their own ideas and strategies for the resolution of the case in hopes that the other party will be able to work something out that both parties can live with. Often the goal is to reach a settlement that works for all parties, without the need for a lengthy and expensive litigation process. However, even if there is not yet a compromise reached, divorce mediation provides the divorce mediator the ability to assist in the resolution of the case so that it can be concluded quickly and with less disruption to the lives of the individuals involved.
It is very common for both spouses to hire their own divorce attorneys who have expertise in both child custody and visitation laws. When you consider the stress and cost of litigation, it is often better to use the expertise of an experienced divorce attorney who has the experience necessary to help you achieve an amicable divorce settlement. Hiring your spouse’s attorney can also present a smoother transition for your children if you decide to hire them.
Many divorce attorneys prefer to avoid collaborative divorces and choose to handle amicable divorces exclusively. However, most of them understand the value of working with other divorcing parties in order to reach a satisfactory agreement. Collaborative divorces are often much quicker to conclude because each spouse is under less pressure and able to concentrate on their individual careers. Also, if there is a child involved in the divorce, it is always helpful to have the input and opinions of other parents who have been divorced. The information that they provide can help influence your final decision.
A third reason that many spouses decide to try amicable divorce via mediation is that they simply do not feel comfortable having a battle in court. This is especially true of those who have children involved. Sometimes a simple discussion between the two parties is enough to settle the issue amicably but if there are children involved, then the judge will be much more likely to allow a full-blown trial. One spouse simply cannot be happy about the results of a trial and feels that the best solution is to try amicable divorce mediation. If the other spouse does not want to cooperate, then the agreement will not go through.
Many people assume that amicable divorce is only effective for couples who do not agree on child support or other key issues. While it is certainly not required for a divorce to be amicable, it is often better for the parties involved if the process can be negotiated rather than drawn out in court. A good mediator will be able to get all parties to agree without necessarily making the entire settlement about gender issues or the like. In fact, it works well to keep divorce lawyers from becoming involved, as these professionals usually do not want to have any part of the custody battles.
When amicable divorce is pursued, both parties will usually benefit from the process as it gives them a chance to communicate about their personal issues without the fear of their respective attorneys becoming involved. Another benefit of co-mediation is that the divorcing spouses can avoid the expense of a lengthy court battle. If you are currently going through a divorce and are having difficulty communicating with your spouse, you may want to consider working with a professional divorce lawyer to help you form a co-mediatory agreement. In the long run, working with a professional divorce mediator will save you a lot of time and money and give you a better chance at getting what you want out of your divorce.