In every situation, neither negotiation nor collaboration will necessarily be the best or worse option. Which strategy to choose depends on the particulars of your case, your personal preferences, and the accessibility of competent mediators or collaborative lawyers. The most typical elements that might affect your decision are listed below.
Things That Encourage Collaboration
1. Need or desire for independent legal counsel
Collaborative divorce may be a better choice if you require the advice of a lawyer who will watch out for your interests at every turn. Your case may, for instance, include intricate legal or financial concerns that you are unable to resolve on your own. Or the concept of always having a specialist to consult makes you feel more at ease. This strategy would meet your requirement for ongoing representation because, in collaborative divorce, two attorneys oversee every part of the case. Divorce lawyers can help in a better way for more legal matters.
2. Inequality of power in your partnership
You may prefer the additional protection and structure offered by collaborative divorce if long-standing dynamics in your marriage make one or both of you feel significantly outmatched in conversations about sensitive topics. Even when your husband disapproves, having a capable, collaborative attorney at your side can sometimes give you more courage to speak your mind. Or, if you are aware of your propensity to dominate conversations with your spouse, you could find it helpful to have a dependable lawyer by your side to prompt you into appropriate silence when required gently.
Limitations of Collaboration
The main disadvantage of cooperation is that if it doesn’t work, you’ll need to start over with a new lawyer, potentially with new specialists and advisers, if the collaboration doesn’t work. This can result in high costs and delays while you train your new attorney and hire additional consultants. For this reason, some lawyers are against collaborative divorce.
Additionally, some attorneys contend that collaborative law muddles your lawyer’s function, who is supposed to explore concessions and solutions that are acceptable to both sides while also advocating for your interests.
This objection misses that if you have chosen to work, you have already determined that it is in your best interests to come up with acceptable solutions to both parties. Another argument against collaboration is that because lawyers are typically more involved in negotiations than in mediation, you may be less likely to come up with novel ideas that defy what the law may or may not require (for example, trading payments for education or job training now for a shorter period paying alimony in the future). A non adversarial approach has the advantage that the law is merely a guideline, not a prescription, and you are free to choose what will truly work for you. There is a claim that the more lawyers participate in the process, the less innovative thinking will be used.
Finally, if collaboration fails, a case could turn out to be quite adversarial since there may be an inclination to give up on ever reaching a fair resolution, much like in a failed mediation. Spending time creating an “exit plan” if it appears like collaboration is falling is one way to handle this issue. This may not always be achievable.
Factors that Support Mediation
1. Flexibility and process management
Potentially more adaptable than collaboration is mediation. To begin with, mediation requires three participants: you, your spouse, and the mediator. You are not obligated to have attorneys—or other professionals—actively participating in the process. Still, nothing prevents you from including additional persons if and when you need them.
Regarding the methods you will adhere to, mediation is more flexible than collaboration. Most collaborative lawyers are members of a group with its own “protocols” (or guidelines) that will be followed in cases handled by group members. This may be advantageous because it reduces the likelihood of professional errors. However, the trade-off is that you might have less control than you would like throughout events in the case. In mediation, where you and the mediator directly decide the procedure and the details of your case, this won’t occur.
2. Cost-effectiveness and efficiency
Collaboration is less successful and efficient than mediation. Coordinating the calendars of four or more people, at least two of whom are busy professionals, is a time-consuming task that can increase the cost of the process just from a logistical aspect. Even if they occasionally confer with attorneys and other experts, the cost of this mediation will almost certainly be higher than one in which the two spouses meet with the mediator alone due to the active involvement of two attorneys and maybe other professionals.
There are laws protecting the confidentiality of remarks made during mediation in a few states. There are currently no such laws protecting the privacy of collaborative work. While the four-way sessions are not regarded as “private” settlement conversations and the laws protecting settlement negotiations are far from absolute, you do share attorney-client confidentiality with your collaborative counsel. Although you should sign a confidentiality agreement if you decide to pursue a collaborative divorce, its enforceability may be limited by certain circumstances. You might be better off mediating if confidentiality is crucial to you and you live in a state with strict laws protecting mediation confidentiality.
Drawbacks of Mediation
You might have to start over and “lose” the money you spent on mediation if you cannot achieve a resolution during the mediation process. In other situations, your consulting attorney might be someone other than an experienced litigator, prompting you to hire a different attorney to represent you in the challenging case that would be your next move. (If you are worried that mediation won’t be successful, be sure to engage with a consulting attorney willing to stick with you through the process.)
The temptation to entirely give up on reaching a mutually agreeable settlement also exists if mediation doesn’t provide a resolution. If so, your situation can get quite heated. However, because mediation is typically relatively inexpensive, these drawbacks are minor. Additionally, rather than engaging in full-scale litigation, you could switch to a collaborative procedure or another non adversarial process.