Mediation and Collaborative Divorce

Mediation and Collaborative Divorce

A common misconception about divorce is that the process must always involve litigation. Contrary to popular belief, divorce does not have to involve litigation at all. At Lonich Patton Ehrlich Policastri, we provide divorce mediation and collaborative divorce services to clients throughout the Bay Area, the Silicon Valley and northern California. Michael E. Lonich facilitates all family law mediations handled by the firm, and he is widely regarded as one of Silicon Valley’s most effective mediators.

Both mediation and collaborative divorce puts control in the hands of the separating couple rather than a judge, so the decisions are reached based on agreement between the two parties. Of course, both forms of marriage dissolution have their own distinct features, yet share similarities that depart from the conventions of litigation.

What is Mediation?

Mediation is a collaborative process, known as alternative dispute resolution, in which the two parties dissolving a marriage work with an impartial mediator. Mediation provides more control to the couple going through the divorce. By contrast, divorce litigation is an adversarial process that typically results in a judge making important decisions that impact families.

Instead of letting one’s lawyer negotiate for them or letting a judge make a decision, mediation offers people in conflict a way to work together to make decisions that resolve their dispute. While it is not necessary for people to agree on all issues for divorce mediation to be successful, it is vital that people are willing to work together to find solutions to contentious issues.

This approach to conflict is based on a simple premise: the people ultimately in the best position to determine the wisest solution to a dispute are those who created and are living with the problem. Although they will likely need support to help them find a productive and constructive way to work together, to understand their conflict and the possibilities for resolving it; they hold the key to reaching a resolution that best serves them both.

The divorce mediator’s role is both active and interactive; working together with the parties to resolve their dispute by discovering collectively what lies at the heart of their dispute. The mediator does not make decisions for either party. Rather, the mediator is a neutral guide who provides information and moderates dialogue between the two parties. Ultimately, the mediator’s job is to help both parties reach a mutual agreement.

An experienced divorce mediator will facilitate communication between both parties to make for smooth negotiations. You can trust a skilled mediator to help you resolve your separation with equity and dignity.

Mediation is regarded as providing better opportunity for control over the conventional factors that are discussed in marriage dissolution, such as child custody, spousal support, and property division.

A couple consults with an attorney about their options for divorce mediation.

What is Collaborative Divorce?

Collaborative divorce is a collaborative process in which both parties maintain individual representation. In lieu of court proceedings, collaborative divorce takes place via four-way meetings with both parties and their divorce attorneys. Similar to mediation, the objective in collaborative divorce is that both parties reach a fair and satisfying agreement.

Collaborative divorce requires both partners to sign a formal participation agreement that states the divorce will not be handled in court. Both collaborative divorce attorneys will withdraw from the case if no agreement can be made or if the negotiation transforms into litigation.

Transparency is key to successful collaborative divorce. It’s in your best interest to be forthright with your attorney about what you aim to achieve through the process. Additionally, you and your partner should provide information concerning all of your assets and debts to keep the process as seamless as possible. Any failure to do so will result in less than successful negotiations. If you suspect a good chance that your spouse will conceal any asset or debt information, then it’s best to opt for litigation.

divorced couple comes to an agreement in their collaborative divorce

How Do You Know if Mediation or Collaborative Divorce is Right For You?

Both forms of divorce are great options if you’re looking to spend only as much as necessary on your divorce. Whether you choose mediation or collaborative divorce, you’ll benefit in terms of cost. You can expect to save anywhere from two to ten times the amount that you would otherwise pay in litigation fees.

Litigating divorce can be a long process–longer than mediation or collaborative divorce. Litigation lasting a year or more. Both forms of negotiation offer peace of mind away from a lengthy litigation that’s taxing and stressful for both parties.

In the state of California, your divorce filings become public record that’s accessible to anyone who requests a copy of it. If you’d like to keep the dissolution of your marriage a private matter, then either divorce mediation or collaborative divorce are ideal choices for you.

Mediation and collaborative divorce are both generally better for the children involved. Rather than witnessing any hostility that can play out during a period of intense litigation, children can take comfort in knowing that their parents are working toward an agreement together. The tone of these negotiations over litigation will likely leave a more positive emotional impact on children.

Reasons Mediation or Collaborative Divorce May Not Be Right For You

While either forms of divorce work in many situations, they may not always be appropriate given the circumstances. Litigation is often the best option in situations where there is domestic violence, one party refuses to cooperate in making required disclosures, or communication between the parties is impossible.

If you’ve experienced domestic violence or are under threat of domestic violence, mediation or collaborative divorce can pose further risk to your safety. First, negotiations may escalate into violence. Second, an abuser has a greater chance of intimidating the other party and coercing that party into a one-sided agreement that gives the abuser an advantage.

Mediation or collaborative divorce may not be for you if you need more aggressive representation. For instance, if you and your partner are prone to bitter disagreement, having a divorce attorney with a wealth of experience representing you through litigation is recommended.

How a Divorce Attorney Can Help You

Both divorce mediation and collaborative divorce require a divorce attorney to work correctly.

In divorce mediation, the separating couple needs an impartial third party to mediate the negotiations. There is no better person for the job than a professional divorce mediator. Divorce mediators are trained in practices conducive to proper conflict resolution.

In collaborative divorce, both parties need their own legal representation to help negotiate for their interests while still working toward achieving a fair agreement.

When opting for divorce mediation, we always recommend that people hire a lawyer to review the final documents. Hiring a lawyer to review mediation documents is not antithetical to the mediation process; it can be an important step in making sure your personal interests are protected.

Consider LPEP Law

There’s more than one route you can take with divorce. At Lonich Patton Ehrlich Policastri, we have a deep understanding of the options at your disposal thanks in part to our combined 100 years of experience in family law. Our drive for excellence empowers us to use our honed experience for serving clients in San Jose, Santa Clara, Santa Cruz, the greater Bay Area and northern California.

Michael Lonich, one of our most experienced mediators, works closely with parties to help them shape the decisions that will be drafted into the marital settlement agreement. In addition to handling divorce mediations, he has extensive experience in handling business law litigation. He draws on his business background when mediating divorce matters for business owners, executives, foreign nationals and their spouses.

We know divorce is a personal matter that calls for the utmost care. Over 90% of divorce cases we handle are resolved through some form of collaborative law. Our training, experience, and knowledge at Lonich Patton Ehrlich Policastri are what sets us apart.

We are ready to discuss your situation when you are. Contact us today for a complimentary consultation.