Collaborative Mediation: The New Divorce Solution

By Stacey Langenbahn, J.D., Attorney-Mediator

Collaborative mediation is a fresh, innovative approach to divorce that is healthy, family-centered, and affordable. Collaborative mediation offers a sensible alternative to the adversarial, two lawyer divorce system for divorcing couples who instead want to make their own decisions and stay in control of their family's future. One neutral attorney-mediator and a counseling professional work collaboratively with a divorcing couple to get them over legal, financial, and emotional hurdles to reach mutually acceptable agreements. With ninety-five percent of couples finding agreement on all their issues, collaborative mediation has proven to be the new divorce solution!

Collaborative Mediation: The Best of Collaborative Law and Mediation

Divorce litigation destroys families and finances. No one escapes its emotional toll, not even adult children. Over the last several decades, enlightened lawyers, mental health professionals, and financial specialists developed mediation and collaborative law as effective, private options for divorcing couples who strive to make their own decisions, protect their families, and save money and time by avoiding divorce war.

Collaborative mediation is the next big step in the evolution.

Collaborative mediation combines the best and most successful strategies of collaborative law with the pure simplicity and cost effectiveness of mediation with outstanding success. To fully appreciate the benefits and advantages of collaborative mediation, it is helpful to have a basic understanding of mediation and collaborative law.

Mediation

For a long time, mediation has been the proven way most divorcing couples resolve divorce and child custody disagreements. Mediation is typically the least expensive assisted consensual dispute resolution process available. Both spouses meet privately and confidentially with a neutral third party (a mediator) who has specialized training in facilitating communications, developing options, and negotiating agreements that work for everyone. The mediator's role is not to give legal advice or impose a decision, but instead to guide the parties to reach their own resolutions. Divorcing spouses make important decisions that fit their family and finances. Mediation avoids the unfortunate result of a judge or arbitrator deciding how much money each spouse will have and when they will see their children.

In many states mediation is conducted without divorce lawyers. In others, it is customary to have them present.

There are other positives to mediation besides low cost, ability to decide how to use lawyers, and self-determination. The settlement rate of traditional mediation is eighty to eighty-five percent (compare Detente's collaborative mediation rate of approximately ninety-five percent). Divorce mediation usually moves fairly quickly. Litigation can drag on for years. A mediated divorce results in a legally binding written agreement that contains all the parties' agreed upon terms for property and debt division, alimony, child support, custody, and shared parenting. Some states allow the mediator to write the divorce decree which also saves money.

The caveat to divorce mediation is anyone can call himself or herself a mediator even if that person has little or no training in dispute resolution. It is a good idea to check carefully the credentials and experience of the mediator and have a consultation before choosing one. If mediation is not successful on all issues the divorcing couple will need to find another way to resolve those that remain. That could be by litigation, collaborative law, or arbitration (any of which generally will require engaging lawyers and spending additional money).

Collaborative Law

Collaborative law is a novel private consensual dispute resolution process. The divorcing spouses are represented by collaborative attorneys. The spouses sign a written "participation agreement" in which they pledge to:

  • Treat each other with respect
  • Consider what is most important to the other spouse in deciding issues
  • Voluntarily exchange relevant information and
  • Resist going to court

With the assistance of a team consisting of their collaborative law attorneys, and mental health, financial, and child specialists, the divorcing spouses resolve their disagreements and decide the terms of their divorce in a series of private and confidential meetings. Like mediation, the focus in collaborative law is on improving communication between the spouses, protecting children from being put in the middle, preserving the strength and unity of the family, and keeping control of the outcome in the hands of the spouses.

Collaborative law may cost less than litigation but could be equal or more expensive depending on the complexity of the spouses' situation, the level of participation of other professionals, and how many sessions it takes to reach resolution. Around the country, the settlement rate of collaborative law cases is reported to be around eighty-six percent.

There is a caveat to collaborative law. It is important for divorcing spouses who are considering using collaborative law to be aware their collaborative attorneys are required to withdraw if the couple does not settle all issues during the collaborative law process. Incomplete divorce settlements during the collaborative process may result in substantially increased legal fees for a new set of attorneys to litigate or arbitrate the remaining issues. Those who find themselves in this situation often feel they have lost significant time and valuable resources in the collaborative process.

Collaborative law is certainly a better way to divorce than litigation. There are many positive attributes, especially the goal of preserving the welfare of the family. But for those spouses who cannot afford the full collaborative team, fear losing their lawyers if they do not settle, or who want to do their negotiations themselves with professional help but without lawyers, collaborative law is not necessarily the best fit.

Collaborative Mediation

Collaborative mediation takes the best parts of mediation and collaborative law and combines them into one streamlined process that can be more satisfying and effective than either process taken alone. The integration has yielded a better than expected collaborative mediation settlement rate. At Detente Mediation Services, LLC approximately ninety-five percent of collaborative mediation clients resolve all their issues at a substantially lower cost than collaborative law or litigation.

Collaborative mediation sessions are co-conducted by two professional mediators who are trained in collaborative practices: a neutral family law attorney and a marriage/family counselor. Unlike collaborative law where the joint meetings are conducted by the spouses' collaborative lawyers, in collaborative mediation a single neutral attorney-mediator guides the couple through the legal and parenting decisions they must complete for a valid divorce, and educates about the law without providing legal advice or taking sides. The licensed marriage/family counselor manages emotions without doing therapy, and teaches the couple a new way to communicate which makes their negotiations far more productive both in the mediation and after the divorce.

The unique co-mediator collaborative team helps spouses express what is most important to each of them, gather relevant information, develop options, and negotiate mutually acceptable agreements for property and debt division, alimony, child support, custody, and shared parenting. Although there are exceptions, generally in collaborative law all the neutral professionals attend every session along with the lawyers, even if the topic on which the professional has expertise is not likely to be addressed at that particular meeting. This may result in high fees and frustration for the clients. Conversely, in collaborative mediation any financial, tax, real estate, child, or parenting specialists the spouses choose from the collaborative mediator's resource network may participate in one or more mediation sessions at the clients' option or meet with them offline when and if the spouses and the mediators feel it would be beneficial. Doing it this way saves money and still makes their expertise readily available.

Collaborative mediation retains from mediation:

  • Neutral co-mediators to facilitate parties' negotiations (an attorney-mediator with the valuable addition of a licensed marriage/family counselor to manage emotions and improve communication)
  • Spouses' ability to decide whether to bring divorce lawyers or to represent themselves
  • Control over cost
  • Efficiency and expediency

Collaborative mediation adopts from collaborative law the goals of:

  • Positive future family relationships
  • Reducing conflict between parents to ensure children's well-being
  • Respectful and constructive communications and negotiations
  • Preserving spouses' financial and emotional health

From a process perspective, collaborative mediation mirrors collaborative law with:

  • Full financial disclosure
  • A series of short meetings
  • A (shortened) participation agreement in which spouses agree to avoid court
  • Respectful consideration of each spouse's needs using interest based negotiation
  • Structured negotiation steps (referred to in Detente's collaborative mediation as the five steps to finding T.R.U.C.E.)
  • A team approach - but with a smaller team of a single attorney-mediator and a marriage/family counselor present and others offline or selectively in sessions

Differences in Use of Lawyers between Collaborative Law and Collaborative Mediation

A very important difference between collaborative mediation and collaborative law is how divorce attorneys participate and what happens if the spouses do not resolve all their issues. As mentioned above, in collaborative law the spouses have collaborative divorce lawyers present in each session. The spouses must replace these lawyers if they are not successful in settling everything.

In contrast, if they cannot resolve all the issues during collaborative mediation, the spouses may continue to use the same lawyers into litigation or arbitration even if the lawyers are trained in collaborative law. It is an option, however, for a spouse and his or her collaborative lawyer to make a separate agreement between them that the collaborative lawyer will withdraw if all the issues are not settled in collaborative mediation. Having control over the level of involvement and the continued participation of lawyers significantly improves the couple's ability to control the cost of the divorce.

Therefore, a spouse in collaborative mediation has choices about the role of divorce lawyers, including not to use a lawyer at all. However, Detente mediators' policy and practice is to encourage each and every spouse to seek divorce counsel on an unbundled or limited scope basis to assist however extensively the spouse wishes. Detente mediators strongly encourage every spouse to have an attorney review the mediated settlement agreement before the spouse signs it. A spouse who does have a divorce lawyer, on the lawyer's advice and using his or her own good judgment, can decide if the divorce lawyer will attend one or more collaborative mediation sessions. Or, the client may decide to ask the lawyer to assist offline to counsel him or her toward an amicable resolution, develop options, review agreements, and do legal paperwork.

Collaborative Mediation Referrals

Attorney-mediators in Texas are not permitted under a current ethics opinion to draft divorce papers even though they are lawyers. Consequently, Detente mediators refer each and every unrepresented client who wants legal assistance to an experienced divorce lawyer (preferably a collaborative lawyer). The lawyer will explain legal issues, review the proposed settlement, protect the client's interests, draft the paperwork, or any combination of those things the client wants and the needs dictate. Any lawyer who creates unnecessary conflict, sabotages the deal for the lawyer's benefit, or refuses to cooperate with the collaborative mediator and the other spouse's lawyer will not receive future Detente referrals.

Thus, not only are spouses and their families benefiting from collaborative mediation, so too are legal, mental health, and financial professionals. Collaborative mediation is emerging as a new way for them to assist a whole new population of clients who seek responsible professionalism, as well as control over costs and decision making.

In summary, savvy divorcing families, collaborative lawyers, divorce financial advisers, therapists, child and parenting specialists, judges, and other professionals whose practices serve families have applauded collaborative mediation as a fresh innovation in cost effective, client-centered, family-friendly divorce. Collaborative mediation has proven itself to be an attractive new solution for divorcing spouses who want to focus toward positive, independent lives with emotional and financial stability - and their family - still intact. For divorce and family professionals, particularly collaborative practitioners, collaborative mediation also has opened the door to a highly satisfying and remunerative practice.

Attorney Stacey Langenbahn, J.D. is a professional family mediator who developed Detente's collaborative mediation after practicing law for more than two decades. She is an accomplished mediator, civil and family trial lawyer, a pioneer in collaborative law, and the founder and President of Detente Mediation Services, LLC in Southlake, Texas. Contact us and learn more about the advantages of collaborative mediation at DivorceMediationTexas.com.