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The differences between mediation and collaborative divorce

The possibility of a marriage ending in divorce is becoming more and more likely. The hope is that the couple would be able to work through their issues, but many couples cannot do that and may be happier apart. Divorce, while it is becoming more common, still involves the same issues revolving around dividing the couple's life together. While the issues may be the same, couples today have more options for resolving their differences short of having a judge make all the decisions at a trial.

Two of the more common divorce alternative dispute resolution options are mediation and a collaborative divorce. Both these options involve the couple deciding to voluntarily provide information to the other side and to try and cooperate to resolve the issues between them. Also, through both options the couple controls all the decisions and agreements. No one makes the decision for them.

There are differences between the two though. During mediation a third party neutral mediator listens to the parties' opinions and helps facilitate negotiations between them. They may try and help each party understand the other's position, but they cannot give any legal advice to either party regarding any potential settlement. If the parties cannot reach an agreement, the parties and their attorneys have the option to litigate the matter.

Collaborative divorce does not involve a third party neutral. It only involves the parties, their attorneys and other professionals, such as financial experts. The goal is to work together with the attorneys who will work to reach agreements as opposed to simply advocating their client's position. If the couple does not reach an agreement, they can still litigate, but they must find new attorneys as the collaborative attorneys cannot represent them in litigation.

All divorces in California are different and how they are resolved vary from divorce to divorce. There are alternatives to litigation, but it is important to understand them to ensure they will be beneficial for the couple. Collaborative divorce is not for everyone. Experienced attorneys understand the options and may be a useful resource.

Source: Collaborative Practice California, "Family Law FAQs," accessed on June 13, 2017

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John T. Chamberlin, Attorney at Law
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