The intention of collaborative law, as with mediation, is to provide an alternative to an adversarial court battle, but the parties cannot share a lawyer in collaborate law. If you wish to engage in a Collaborative Divorce, you must each find a collaboratively trained divorce attorney who is willing to sign an agreement that if the case does not settle, he or she will not represent you in a court battle. There must be a signed Collaborative Agreement. If a lawyer tells you he or she can work “collaboratively” with your spouse’s attorney, without the risks and rewards of the Collaborative Participation contract, it is not truly a collaborative matter. Such a lawyer may be more concerned with preserving his or her opportunity to earn fees in litigation, and this may be an impediment to the success of the process.
Collaborative law may be less expensive than a court trial, but it is usually not inexpensive. Each spouse must hire his or her own collaborative lawyer who will attend meetings with the other spouse and his/her attorney. The parties may each hire forensic accountants, appraisers, child-custody evaluators, vocational evaluators, or whatever else is needed to address the issues. Although this process is meant to promote settlement, with all of the meetings and the stream of experts, it can become very expensive. The advantage to this process as compared with litigation is that the discussions are held in private, but discovery takes place and information may come out that would make the process less private and confidential than mediation.
Mediation, however, usually involves one attorney-mediator who facilitates the proceedings, educating the parties as to their rights and obligations, deflecting the conflict, and preparing the documentation. There is only one attorney/mediator who does not represent either party, but acts as a neutral to help the parties arrive at a fair agreement under the law.
It is true that mediation is also a collaborative process — but collaborative law is not mediation. Mediation is normally less expensive than collaborative law; there usually are not so many attorneys and experts involved in the meetings. The parties may attend mediation with their divorce attorney/mediator without independent counsel present if they wish to save funds. Normally, if forensic accountants, appraisers, or other experts are needed, the parties agree to use a neutral expert to give them a range of values to negotiate in mediation. The mediator prepares the court documents and a public marital settlement agreement for the court — leaving out many of the financial and sensitive data. Often an experienced mediator prepares a detailed private marital agreement with the more sensitive data to protect the privacy and confidentiality of the proceedings. All agreements are enforceable in court.
Because mediation is a voluntary process in which the parties arrive at agreements, there is no reason to argue anything in court, so the mediator usually files all without the parties having to appear in court. The necessary papers omitting the sensitive information is filed with the court in order to enter a judgment. Of course, the parties have the opportunity and are encouraged to review any final settlements before filing with independent counsel, to make sure they get legal advice as to their informed decisions and to assure that the mediator has facilitated a fair agreement.
Mari Frank is a divorce attorney-mediator in Laguna Niguel, CA (Orange County). She has been featured on numerous national television shows including 48 Hours, Dateline, NBC Nightly News, and The O’Reilly Factor and in newspapers across the nation including the L.A. Times, The Washington Post, and The Wall Street Journal.