I am a huge proponent of the benefits of collaborative divorce, but it’s not as well understood as other divorce processes, so I thought I would answer some common questions.
What Is Collaborative Divorce and How Does It Work?
Read more about the basics of Collaborative Divorce here.
Who Makes the Decisions?
In a Collaborative Divorce, the parties make their own decisions. They do not rely on a judge and can structure their own solutions and be more creative in reaching a resolution.
How Is It Different From Mediation?
The main differences are in the use of teams of professionals, the timing, the focus on interests and needs in Collaboration rather than arbitrary guidelines, and the role of the threat of judicial intervention.
Mediation involves a neutral third party who helps the parties try to work out a settlement. In Tennessee, mediation often occurs after there has been extensive work done in discovery (the process of gathering and exchanging information and records). Often, mediation is the last step before trial. Discussions in mediation often include the implicit or explicit threat to “let the Judge decide” or “I'll just take it to court” if the other party will not agree with what one party wants.
In contrast, in Collaborative Law cases --
The parties work directly with both attorneys, the neutral professionals and each other.
Discussions begin immediately
The parties themselves decide how and when they will resolve the issues.
At the outset, the parties agree not to go to court, which eliminates the threats that occur in mediation.
The negotiations are interest-based, rather than positional bargaining.
The parties determine their underlying needs and abilities and create custom solutions themselves, rather than relying on a judge to decide.
Why Do the Attorneys Have to Withdraw if the Process Fails?
It is a fundamental element of the process. That requirement ensures that both parties will sincerely work in good faith to settle the case. The cost and inconvenience of hiring new attorneys is a huge incentive for the parties to stay with the process and reach an agreement. The loss of business from failure is also an incentive for the attorneys and other professionals to work until an agreement is created.