Mediation & Collaborative Divorce

MEDIATION & COLLABORATIVE DIVORCE

Mediation and Collaborative divorce processes are not therapy. These are not designed to save a marriage—that’s the work of skilled therapists. But we often work in tandem with therapists, who provide support and understanding while we offer information and help couples plan to move forward.

Divorce mediation & collaborative opens a door that educates clients to their options, opportunities and potential financial outcomes. BOTH sides need this critical information in the divorce process.

At its core, divorce is a legal dispute over a contract—the marriage contract. This does NOT mean you have to go to court. In fact, most courts prefer couples work out divorce details themselves. Instead of doing it in a courtroom, you’re doing it in a relaxed office environment.

Either mediation or collaborative allows you to reach solutions for the important things that must be decided: child custody, support and finances. YOU have the power to make a deal. The process is straight forward:

One person makes a proposal
The other side considers the proposal
They accept in whole, in part or not at all
Then they make a counter proposal
The recipient of the counter proposal accepts in whole, in part or not at all

The cycle moves forward until there is agreement on the issues.

Mediation and Collaborative processes are neutral, private and in your control.

In mediation, the mediator is a neutral third party. They cannot represent one person over the other, but they do monitor the balance of power to keep both parties on the same level playing field. Think of us as Switzerland – a neutral country that doesn’t take sides.

In collaborative, each person has legal counsel that actively assists in the negotiations. The financial person is a neutral third party that gathers material, evaluates options and offers reports about assets, income and taxes.

In all cases, at Oak Tree, the children are paramount. Your family isn’t breaking, it’s changing. We work hard to help you keep children from being victims of a painful adult-driven process.

LOOKING AT MEDIATION & COLLABORATIVE: BOTH OPTIONS CAN PROVIDE A PEACEFUL PROCESS DURING A STRESSFUL TIME IN LIFE

With divorce, it’s hard to be calm and have a plan for something you never planned on happening.

What are the steps to mediation:

1. GATHERING INFORMATION

The process explained in ONE LAST LOOK™ sets the groundwork for your divorce mediation:

Neutrality is established as third-party mediators.
Critical information—assets, income and expenses—is gathered.
A financial profile is created that serves as a snapshot of your financial situation.

This financial background builds an awareness of what’s on the table, the type of assets the couple holds, and what those assets mean to each person.

2. MEDIATION BEGINS

The mediation process involves a series of meetings that help you determine objectives and develop an agenda for the meetings. These meetings usually run between 90 minutes and two hours long. Each situation is different, and the number of steps can vary. Mediation is not a “cookie-cutter” process.

STEP 1. The goal at this meeting is to get to know the couple and build an understanding of their interests. We explain how the mediation process works and what may be expect.

We then help the couple to prepare a general outline of settlement issues for consideration.

STEP 2. Next, we may conduct separate meetings with each spouse. The goal here is to gain a perspective of the situation from each individual’s point of view.

It’s also a time to learn what issues are important to each individual and what outcomes they are seeking.

STEP 3. The next meeting defines levels of agreement. The goal is to assess where you and your spouse agree, and where you need some work to reach agreement.

Items to be mediated are ranked, and the process of reaching agreement begins in order of importance. Sometimes, to ease a couple into the process, easier issues are handled before more impactful issues are discussed.

This meeting is generally very productive, and may run longer depending on the couple, the level of cooperation and how the process is flowing.

3. AGREEMENT IS REACHED

Finally, the couple builds a financial structure that meets their objectives. If children are involved, there is a parenting schedule or parenting plan developed. These items are written into an agreement that both spouses sign.

By the end of this stage, agreement should be reached on all major issues: support, division of finances as well as debt, plus custody and visitation. We remind couples that agreements generally are not “liked” by everyone, but they are agreements that they can live with.

4. ATTORNEY INVOLVEMENT

We provide the couple a list of attorneys – professionals we know who are mediation-friendly. We may also recommend, if appropriate, converting the process to a collaborative case. Each person hires their own separate counsel. These may be limited scope representation to provide legal advice during mediation or full representation for collaborative.

In collaborative divorce, you and your spouse each retain lawyers who are trained to work cooperatively and agree to settle your case. The work is done in cooperation. There are no adversarial approaches, pressure tactics, and no one goes to court.

From mediation, the agreements are put into a Memorandum of Understanding (MOU). This is not a legal document. It is a listing of agreements that will be presented to each counsel for review and comment. Sometimes this brings up issues for further mediation, but usually counsel advises the client of their situation, what the agreement means and how it can be implemented.

Once agreement is reached, either a Memorandum of Understanding (MOU) is written up from the mediators, or a Marital Settlement Agreement (MSA) is drafted by legal counsel. It’s then reviewed by each spouse and their attorney. Once completed, it’s signed and filed with the courts.

WHY IS DIVORCE MEDIATION SO SUCCESSFUL?

Less expensive: Mediation will cost much less than a court trial or hearings, where divorce attorneys argue the same issues at a price tag of $350-$1,000 an hour. You may be able to resolve these issues in mediation for a lot less.

Control: Mediation lets you work toward your solutions. These are based on what you believe is in your better interests for your situation. It avoids having an impersonal legal system impose solutions on you. You and your spouse control the process.

Confidential: The mediation process is confidential. Each session is private. Court records in contested divorces are generally accessible to the public.

Legal counsel: You should have a lawyer giving you legal advice. The difference is they enter the picture at your direction. This can help preserve your financial assets by reducing your legal costs.

Long-term benefits: The mediation process can improve communication between you and your spouse, helping to avoid future conflict.

WHEN IS DIVORCE MEDIATION POSSIBLY NOT RECOMMENDED?

The following is our opinion only. There are differing views on this topic. The first three may possibly be worked with under proper controls.

DENIAL: If both parties don’t agree the marriage must end, the mediation process becomes an attempt to resolve the issues of the marriage instead of agreeing on the issues of divorce.

HIDING ASSETS: Full disclosure of the couple’s income, expenses, assets and liabilities is critical. If you suspect your spouse won’t be open and honest about your finances, you’re better off taking it to court.

ALCOHOL OR DRUG ADDICTION: Sadly, addiction is a leading cause of divorce in the U.S. Equally tragic is the way addiction impairs judgment and reason. If your spouse has an addiction, it may be impossible to negotiate effectively, even with the help of a skilled mediator.

DOMESTIC VIOLENCE: If there is domestic violence (physical or mental) in your relationship towards you or your children, divorce mediation won’t succeed. If you’re abused or seriously intimidated by your spouse, you can’t be an effective advocate for yourself. Get support and help from a shelter or other resource.

To talk about your needs, call for an initial consultation. In Carlsbad and San Diego North County call us at 760.439.5616 or 760.518.5616.

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