The legal field provides a plethora of approaches to resolving disputes in the family law realm. While the family law dispute process can seem daunting and extremely difficult, you are not alone in this difficult time. Litigation can bring fear in even the most hardened individuals, so it is useful to examine multiple alternatives. Today, we will discuss both the collaborative approach and the mediation approach.
Collaborative Family Law is a client-centered approach to problem solving during the divorce process. The goal of collaborative family law is to allow all parties to dissolve a marriage with minimal interference from the court system. Conversely, the Mediation process consists of a neutral third party (acting as a mediator) who facilitates communication and negotiation between the parties. The goal of the mediator is—to name only a few—to find common ground, to reason, to suggest, to convey information, and to provide the skills necessary to find a resolution to the conflict. Below we’ve provided information on the processes of both the collaborative approach and mediation to help you decide which process fits your particular situation.
Collaborative Family Law
The Collaborative Process begins when all parties execute a Collaborative Participation Agreement. The Agreement binds the signors to the tenants of cooperation, honesty, integrity, and professionalism. There are no secrets in the Collaborative process, all parties agree to be forthright in all information regarding the marriage. The Agreement also requires the parties to agree that they will not seek Court intervention. This process is formal and requires both parties to have outside counsel.
Full disclosure of all relevant information is an important part of the Collaborative Process, if one party fails to fully disclose relevant information, then the process will be terminated. It is the job of counsel in the Collaborative Process to ensure that the client is being fully represented and informed of all requirements to reach a successful resolution. Each party may bring forth individuals with specialized knowledge to further the process, these individuals may be experts (such as appraisers, certified business valuators, etc.) or other any number of other professional specialists (such as child specialists, family relations specialists, financial specialists, etc.). The information provided by these experts or specialists can provide information to assist all parties in coming to an amicable, client-centered outcome.
If, however, the parties are unable to amicably resolve all disputes, or if one of the parties feels they are unable to proceed without Court intervention, each party must retain new legal counsel and must—with some limited exceptions—wait 30-days before going to Court.
Family Law Mediation
The mediation process works in stages:
- Fact Finding and Identifying Issues
- Brainstorming Options
- Negotiating Options
- Preparing Terms of Agreement
- Revision of Agreement by Attorneys and Submission to Court
All parties involved in the mediation process are able to provide input at each stage regarding the dispute and resolution. This involvement provides both parties with the power to create terms which are specifically tailored to the unique situation at hand.
In mediation, there is no requirement of separate legal representation, as with the Collaborative Process. The mediation process is informal and does not require the parties to sign a no-court agreement. The process of mediation is highly flexible and allows all parties to have a high level of involvement in the dispute resolution process. The mediator does not decide the outcome of the process, rather they are charged with assisting both parties to resolve their problems and design an agreement which is most beneficial for each party.
To ensure the informal nature of the process remains intact, mediation communications are confidential. Generally, no party to mediation may break confidentiality unless both the speaker and all those involved agree that the communication may be shared. A mediator may not share the content of a private communication with any person, including a judge presiding over the dispute except in the situation where the mediator is under a legal obligation to disclose the communication (for example a threat of harm, admission of a crime, or admission of abuse). Once a final agreement is reached, the mediator may inform the Court of the individuals who met for mediation and that a final agreement was reached—full stop.
As with the Collaborative process, an agreement may not be reached during mediation. Any issue that is left unresolved will be settled by further negotiations or may have to be determined by a magistrate or judge.
If you feel your dispute may be best reached by either the collaborate method or by mediation, contact Zachary D. Smith, LLC for representation. Zachary D. Smith is a member of the International Association of Collaborative processionals and Cincinnati Academy of Collaborative Professions. Likewise, Zachary has received extensive mediation training specifically concerning Family Law matters. For further information or to schedule an appointment please contact Zachary D. Smith, LLC at (513) 275-1164 or visit http://ZDSLaw.com/ to learn more about your rights and responsibilities.