A common misunderstanding about the process of divorce is that you and your ex-partner must go to court. A process often deemed lengthy, costly, and destructive for families.
Groups of lawyers saw that this system of resolving divorce through court battles and aggressive negotiation had hugely damaging effects on separating couples and their families. They wanted to offer a better, more human and respectful way to reach agreement through round table meetings rather than through court.
Thus, alternative dispute resolution methods were born, including mediation and collaboration. But what are the differences between them? And which is right for you?
Sally Swinney, a Partner with Blackwood & Smith and member of Consensus Collaboration Scotland commented “Which approach to use to facilitate divorce is completely down to your unique circumstances. We find that every family is different. We advise our clients to think carefully about what you want from your divorce, how it will affect your children and finances
and whether your ex-spouse feels the same. This can determine which option is right for you.”
If you know you want to use an alternative dispute resolution method but are unsure which one is right for you, Sally has given an overview of the main differences:
In mediation, a neutral third party (the mediator) is present at all meetings to help manage the negotiation between the two spouses. The mediator facilitates the conversations and ensures both parties are heard and understood but has no power to decide the final agreement. The mediator does not give legal advice, and no solicitors are present at mediation meetings, however, spouses can seek legal advice throughout the overall process from their own solicitors.
This approach is efficient and non adversarial compared to litigation, provided the couple are able to make joint decisions.
Collaborative practice has the same intent, it is a voluntary process that aims to reach a respectful resolution by problem solving, not by blame or seeking revenge, but its process is different. Each spouse is represented by their collaborative lawyers, creating a four-way negotiation within meetings. Clients find this is supportive if they need or desire legal advice. The lawyers may also recommend involving other members of a wider collaborative team such as financial specialists and family consultants to help you make informed decisions and provide emotional support. This ensures the interests of everyone, especially the children, are considered and championed.
The other main difference is that you, your spouse and the collaborative lawyers sign a contract called a ‘participation agreement’ that states you are all committed to acting with respect throughout the process and avoid court action rather than using combative tactics. The agreement expresses a commitment to avoiding court action. If the collaboration breaks down both parties have to instruct new solicitors as the collaborating solicitors will not be able to act. This creates a common interest for the parties to cooperate and reach a successful conclusion allowing the parties to retain control over the negotiations The process is completely transparent as the solicitors do not correspond. All negotiations are dealt with via face to face meetings.
Collaboration is based on trust and doesn’t work without cooperation. Can you be respectful to each-other and consider plans that are workable for everyone? If you answer ‘yes’ to this, and you think that your spouse or partner will do the same, then collaboration is probably the best choice for you.
If you’re considering an alternative to a court based divorce, contact a local collaborative professional for advice and information.