In my 17 years of practice I have helped many clients with their Oregon divorces. One of the best developments I have seen is the growth of collaborative divorce, and the increased use of mediation to resolve disputes. I have come to view my practice as dispute resolution, with trial work and litigation as only one tool I have to help clients resolve divorce disputes. In talking to clients about the benefits of different dispute resolution models, prior to helping a client understand all of their options, a common question I hear is “Why not just mediate vs. go through the collaborative process? Aren’t they the same?”
In mediation, the parties use a neutral third party to aid in negotiation and help settle the case. The mediator may mediate face to face, or mediate with parties in different rooms and shuttle back and forth. Lawyers may, or may not participate, depending on the client’s wishes. When there is an agreement, the mediator prepares a draft of the settlement terms. The mediator will try to find common ground, but cannot give either party legal advice. While some parties choose to mediate prior to filing for divorce, mediation frequently happens during the divorce process, and with the negatives that come from negotiating with a trial date looming.
In a Collaborative divorce, both lawyers are present during negotiation to keep everyone focused ont the end goal, a settlement. Central to Collaborative divorce is the participation agreement, a contract signed by the parties and lawyers that neither client will file for divorce and litigate without formally backing out of the collaborative process. Your lawyer needs to be trained in collaborative process, and your lawyer will work with you one on one to ensure the process is on track and positive. On reaching an agreement, the lawyers draft an agreement and the final paperwork.
Both processes require trust, a free sharing of information, and a commitment to respect the parties and their goals. A strength and weakness of collaborative divorce is that if the process fails, you need to retain new counsel because of the participation agreement. A failed collaborative case can cause substantial additional legal expense and frustration. In mediation, if mediation fails, you can proceed with your mediation lawyer on to a traditional case.
When asking your lawyer questions about divorce, I recommend talking to a firm that has experience and training in collaborative law and mediation, and not just litigation. This level of experience will help you make a well reasoned process choice for your divorce.