Who should choose a Collaborative Divorce and who should Choose mediation?
I’ll start by talking about mediation, since it’s faster and less expensive, and then I’ll talk about Collaborative Divorce. And remember, if you start in mediation but decide later to switch to Collaborative Divorce, you can do that. Or vice versa. You can start in Collaborative Divorce and switch to mediate. So making an initial choice now doesn’t prevent you from changing your mind later.
That’s one of the great things about not going to court—you stay in the driver’s seat in the process.
Who’s a good candidate for mediation?
If you’re ready to reach an agreement, reasonably sane, and you can sit in the same room with your spouse and talk about things (with the help of a mediator), then try mediation. Mediation is faster and less expensive than Collaborative Divorce, so it’s worth a shot. At Peace Talks, about 95% of our mediation clients end up with an agreement no matter how rocky the mediation or level of conflict.
Your mediator might be an attorney, a therapist, or a financial professional. It’s up to you…or even hire 2 or 3 mediators to work together. We call this “co-mediation” or “team mediation.” The different professionals have different perspectives, so combining forces can be very effective and make the process go faster and more efficiently.
Although your mediator will have expertise in his or her field, your mediator’s job is to stay neutral and not to take sides. The mediator will facilitate the negotiations, adding his or her suggestions as you go, and making sure you stay on track. The mediator’s role is to help you settle, not to give you individual advice or individual represented.
To be successful in mediation, you’ll need to be:
• Committed to staying out of court and wanting to reach an agreement
• Ready to reach an agreement (even if you have no idea how)
• Confident enough to ask questions and speak up if you don’t like how things are going (the mediator should make it easy for you to do this)
• Ready to ask for help if you need it
Some people are able to do these things during their divorce and some people aren’t. Ideally, the mediator is keeping an eye on whether the discussion is balanced and whether both of you understand what’s going on. But sometimes participants look really calm on the outside but are boiling over on the inside, and the mediator doesn’t notice. So feel free to speak up. Speaking up is an important part of the process.
Remember, it’s the mediator’s job to help you speak up, so you don’t have to feel like the responsibility is all on your shoulders—it isn’t. All you need to be able to say is, “I don’t understand what you just said,” or, “I don’t like the direction this conversation is going,” or, “I need help understanding these numbers,” or even “Can we take a break for a moment?”
It’s the mediator’s job to take it from there. And if your mediator can’t help you after you say you’re not comfortable or that you don’t understand, that’s the mediator’s fault, not yours.
Your mediation will not go perfectly. Just last week we had a very uncomfortable moment in the mediation and I said something stupid out of sheer nervousness. The wife spoke up and said, “That comment was really annoying!” Thank goodness she said something. I was feeling uncomfortable about it but wasn’t sure what to say to fix it. Her comment let me explain, “I know. It was really stupid of me to say that. I was uncomfortable in the moment and said the first thing that came out of my mouth and that was wrong. I’m sorry.”
She accepted my apology and we moved on. If she had held her comment on, the rest of the session probably would’ve been very rocky. But because she said something, and because I answered her honestly, we “fixed” the process and successfully moved on from there.
The good news is that if you try mediation and decide it’s not for you, you can always “upgrade” to a Collaborative Divorce.So there’s no reason not to try.
On the other hand, if you’re really worried about your legal rights and feel like you want an advocate to help you stand up to your spouse, then Collaborative Divorce is the option to choose. In Collaborative Divorce, you’ll have your own attorney (your spouse will have his or her own attorney to). You’ll each have a therapist-coach who will help you manage your feelings and strategies how to get through the settlement discussions without making yourself crazy. You’ll have a neutral financial expert who will help both of you figure out the numbers and make sure that everyone has the information that they need in order to make a good decision.
Here’s a little more about the role of each professional in a Collaborative Divorce:
Attorney: Your attorney will meet with you privately, discuss your concerns and give you legal advice just like a traditional attorney. In addition to this traditional role, your attorney will also help you think strategically and help you prioritize your goals. Your attorney will advocate for you in the collaborative meetings, but he or she will also help move the settlement process forward.
So don’t be surprised if your attorney, who is your advocate, suggests that you consider the case from your spouse’s point of view, or if he or she challenges some of your requests in the divorce. Or if the attorney is nice to your spouse in joint meetings.
So while some of the roles of your Collaborative Divorce Attorney are the same as if you were in litigation, the attorney’s role is also to help with the settlement. So while an attorney in court might get all dramatic and advance your position no matter what the opposing attorney says, your Collaborative attorney will approach things with a more realistic and practical approach.
Therapist Coach: Your coach will be a therapist (as his or her original profession) but your coach’s role is to coach you through the process, not to serve as your therapist. So while a traditional therapist might ask you about your family history and really delve into how you got to your present circumstances in depth, your therapist-coach won’t focus on those topics. Your therapist-coach’s job is to literally coach you through the Collaborative Divorce process.
For example, your therapist-coach might talk to you about how you’ll address your spouse’s bossy attitude about the finances. He or she might talk to you about when and how to respond to offensive comments made by your spouse (whether these comments are intentional or not). Your coach will help you think of ways to stay calm during the joint collaborative meetings. Your coach can also work with you on how to cope with your feelings during your divorce.
The coach role is more solution-focused and behaviour oriented than most traditional therapy.
Neutral Financial Professional: The neutral financial professional works equally for both of you. That might sound sort of strange at first, but the idea is that the numbers are the numbers, and it’s the financial neutral’s job to make sure that all of the relevant numbers, documents, tax returns, pay stubs, etc. are fully disclosed to both of you and that you both understand the numbers.
The financial neutral will insure that everyone has provided the documents and disclosures that are required not only by the court but also which help you understand your full financial picture. Then, he or she will explain everything to both of you. If you need more help understanding, the financial neutral’s job is to work with you until you’re comfortable with the information. The same is true for your spouse.
Once everything is on the table, your financial neutral will help you identify and evaluate all your options. He or she will do that without trying to talk you into doing anything in particular.
Here’s a real-life example of a situation that came up in our office recently: Husband and wife owned a big house in a nice neighbourhood where they raised their family. They also owned some income producing rental properties. Initially, the wife said that she’d like to keep the family home. So I (as the financial neutral) prepared a spreadsheet that showed what assets she’d have to give up in order to keep the house. In addition, we looked at her budget, income, and child and spousal support using the assumption that she’d keep the house.
As it turned out, she could afford to keep the house. But just barely. And if something happened that lowered her income or support, her budget would be in trouble. But keeping the house would work if she really wanted it to work.
Then I suggested we look at a few more options. What if they sold the house? What if she took the rental properties and the husband took the house? What would those scenarios look like?
While the wife wasn’t thrilled with the idea of moving out of the house and into one of the rental duplexes, we figured out that that she could remodel part of the duplex to make it feel more like home and that between her income, the rental income, and her support payments that she’d be MUCH more comfortable and financially stable than if she kept the big house.
She took the spreadsheets home with her and thought about it. There was no pressure to make a decision right then and there.
I did the same thing with her husband. What were his initial thoughts on the settlement? We ran those numbers and made some spreadsheets. What about a few more options? We ran those numbers and made more spreadsheets. He also had time to think about what his overall best decision would be….. not just his initial thoughts about settlement.
As the financial neutral, I didn’t have to try and talk either party into anything. I just made sure they understood the various options and what each option would mean to them in terms of lifestyle and security.
The ultimate decision is theirs. That’s how I can stay neutral as a financial expert.
That’s how each professional’s role works in Collaborative Divorce.
Mediation and collaborative divorce is focused on coming up with the best settlement for all parties involved and tailoring it to your unique needs.
Stephanie Maloney Certified Financial Planner (CFPA) in the Los Angeles area and as a divorce mediator and President at Peace Talks. This article has helped you better understand the differences between divorce mediation services and Collaborative Divorce, and how each works. The good news is that these are both very flexible processes and both will keep you out of court.
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