The Collaborative Divorce: An Alternative to Mediation or Litigation

In the last blog, I discussed divorce mediation as an alternative to divorce litigation. In that blog, I explained that the primary goal of divorce mediation is to amicably resolve the couple’s divorce, but that mediation often comes with a price tag of open-endedness and a lack of finality. I also explained that the primary goal of divorce litigation is to resolve the divorce with as much finality as possible, but that litigation often comes at the expense of amicability. In recent years, a third alternative, known as a “Collaborative Divorce,” has developed and is starting to take hold in many states. Collaborative Divorces are rare in New Jersey but are expected to increase as people seek alternative methods of dispute resolution.

The Collaborative Divorce method is initiated when each party retains an attorney who has been specially trained to handle a Collaborative Divorce. The parties and their attorneys sign a “Participation Agreement” at the beginning of the process, which prohibits the parties and their attorneys from filing any pleadings with the Court. This takes the threat of litigation out of the process entirely and allows the parties to proceed without the prospect of judicial intervention hanging over their heads.

Once the Participation Agreement is signed by the attorneys and the parties, the process requires all four participants to devote themselves to finding non-adversarial, “win-win” solutions to their divorce-related issues. This is accomplished by each party empathetically addressing the concerns of the other party, rather than each party taking a position based on the law and bargaining from that position. This is referred to as “interest-based” bargaining as opposed to “position-based” bargaining. The job of the attorneys during a Collaborative Divorce is to protect their clients from a legal standpoint while also quelling and redirecting the negative emotions which will inevitably arise during the process.

As is the case in litigation, necessary documents are exchanged during a Collaborative Divorce and the parties are required to fully disclose all of the information necessary to settle their case. Thus, Collaborative Divorces should not be seen as a way to avoid full and complete disclosure by either spouse. Likewise, experts such as forensic accountants, business valuators, property appraisers or custody experts are retained in Collaborative Divorces if necessary. However, in order to retain the non-adversarial nature of the process, a single, joint expert is retained by both parties in those Collaborative Divorce cases which require an expert or experts.

A Collaborative Divorce has many benefits for the right couple in that it retains both the protections of litigation and the cooperative amicability of mediation. On the other hand, most divorcing couples will have to work very hard to make it through the Collaborative Divorce process successfully. While a divorcing couple may at first think that this is the best method for them, in reality many people going through a divorce will find it difficult over the long run to truly empathize with the concerns of the person they are divorcing, let alone put those concerns ahead of their own in order to settle the case. This is especially true in those cases in which one party does not want the divorce in the first place, or one party feels wronged by the other party. This is an important factor to consider in light of the fact that the Participation Agreement requires the parties to retain two new attorneys and start all over, emotionally and financially, if the Collaborative Divorce process fails.

Thus, as is the case with mediation and litigation, this alternative may or may not be right for you, and you should discuss it with as many professionals as necessary before you arrive at a decision as to which method is best in your case.

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