One of the questions family lawyers often get is whether it is possible to get divorced without going to court. The answer is: yes. Dispute resolution has long been recognised as an option for people who want to avoid costly litigation. To most people, the concept is synonymous only with mediation but ‘collaborative law’ is another viable option, too. Keep reading to learn about both.
What is the collaborative law process?
In the context of divorce, this is a process in which you and your spouse each have lawyers. After you all sign a contract called a ‘Participation Agreement’, you work together. The stated goal of the agreement is to settle any legal aspects of your divorce without the need to go to court. The method follows an interest-based negotiation model in which you try to come up with a solution both of you can live with. Ideally, this solution will take into account the needs, goals, concerns and fears of both parties.
What distinguishes it from mediation?
The key difference between collaborative law and mediation is that lawyers actively participate in the former. Each acts as an advocate for his or her client and ensures that the clients interests are addressed in the final agreement.Conversely, a mediator is a neutral third party responsible for facilitating the negotiations. He or she cannot provide any specific legal advice or advocate for either party in any way.
Pros and cons of the collaborative approach
Like anything else, collaborative law has its pros and cons. The advantages are:
- The ability to have a lawyer with you to provide advice and support throughout the process.
- Lower cost than conventional divorce litigation
- Privacy and confidentiality – each of your relationships is protected by attorney/client privilege. You may also sign a confidentiality agreement.
- The ability to take your time coming up with a solution (no strict deadlines).
The disadvantages are:
- Your lawyer(s) can no longer represent you in future negotiations if you are unable to come to a satisfactory agreement.
- If the collaborative approach fails, you have to start from scratch, incurring more expense and delays.
- The possibility that there may be fewer opportunities for creative solutions with lawyers involved.
- Risk that the process may become antagonistic if talks begin to break down.
Mediation – a basic overview
As we have noted, mediation is a process in which a neutral third party, called a mediator, guides you and your estranged partner through negotiations. These talks are designed to help you reach consensus on any outstanding issues related to your divorce. The talks are held in an informal setting and there is no need to have a lawyer.
Pros and cons of mediation
Mediation also has its pros and cons. These are some of the advantages:
- Flexibility compared to traditional litigation and collaboration (in some cases).
- The ability to have a significant say in the process and outcome.
- Much lower cost when compared with traditional litigation.
- Shorter timeframe needed to complete the process compared to litigation or collaboration.
- Privacy and confidentiality – some states have laws specifically designed to shield any statements made during mediation.
These are some of the disadvantages:
- Having to start the entire process again if initial negotiations fail.
- The potential for added costs and time if you have to start over.
- The potential for abandonment of the process in favour of traditional litigation if it does not work out.
- The possibility that your relationship could disintegrate further if the first round of mediation fails.
The bottom line
At the end of the day, you and your spouse make the decision about which option is best for you. If there are few points of disagreement and both of you feel you can work through them with someone to guide the negotiations, mediation may be the best choice. On the other hand, the collaborative law process may work better for you if there are multiple, contentious issues. It may also be preferable where you wish to rely on an attorney’s services throughout the process.While the choice of dispute resolution services is up to you, there is one last point to keep in mind. Australian family courts mandate that you “make a genuine effort” to resolve any outstanding issues through dispute resolution services before seeking court intervention. Specifically, the courts will not accept applications for parenting or financial orders without evidence that you have done so.To learn more about use of mediation in divorce, contact us today.