As a litigation attorney, I have vast experience in the court room and with evidentiary matters to best handle the most complex litigation cases. With jury trial experience, rare to have in family law, there is no issue complex for me to handle. I have stepped in last minute to handle divorce trials and been over prepared. Preparation is key in all litigation and in believe in no stone unturned..
As a litigation attorney, my experience is that after a long battle in court, the parties are left bankrupt and the case settles for what it could have settled for when it started. That means that all the money the parties spent in litigation could have been saved and spent on more meaningful things such as the children’s college education. Usually a case goes through years of litigation because one party wants to fight. In a collaborative divorce setting both parties must want to settle the case through good faith and reasonable discussion.
There seems to be a level of confusion circling around the differences between Collaborative Divorce and Mediation.
In 2007 the Family Code Section 2013 was enacted which allows parties to deem a family law case as “collaborative divorce.” A collaborative divorce is one in which the parties sign a written agreement, filed with the court, to keep the matter out of court and negotiate the settlement of all matters and issues in good faith.
In a collaborative setting the parties each have their own counsel. The attorney’s negotiate and advocate on behalf of their client. This is the best possible solution because the parties are receiving individualized representation. What is even better is that there is no threat of a party filing a motion in court and racking up legal bills and court costs so it is economically efficient. This provides for less stress on the parties and makes the divorce process much easier to go through. Under the collaborative divorce setting if a party wants to opt out of the collaborative divorce they have to give 30 days notice prior to filing in court and retain new counsel.
The difference in a Collaborative Divorce setting is:
1) The parties bypass the formal discovery procedures and exchange financial documents and information in good faith;
2) Good Faith efforts are implemented to come up with more creative family planning;
3) The lawyers work toward one focus and that is settlement;
4) Neutral third party experts can be retained to provide a supportive role and insight. For example, a financial specialist may be hired to give an assessment of the dissolution of assets and debts in a complex case, or a parenting plan coordinator could be brought on to give the parties insight as to what would be more beneficial for the children;
Mediation is a third party neutral that does not represent either party. No party in this case has an attorney. A huge misconception is when people believe that they are hiring an attorney who will protect their rights in mediation. This could be further from the truth and I see people get the short end of the stick all the time through mediation. A lot of clients come to be after a judgment has been entered in mediation and they want to reverse things- you cannot do it- only in extreme situations can you set aside a judgment and that is for another topic on this blog. Until you have your own counsel that you signed an individual retainer with no neutral third party can advocate for you.
In my professional opinion, I believe a collaborative divorce is best. Clients receive every benefit under a collaborative process; it is faster, less expensive and if a good attorney is retained the client receives adequate individualized attention and advocacy.
Litigation is pretty self-explanatory; it is adversarial and parties seek court orders, high legal bills and stress. Although, attorney’s are trained to be well equipped in the court room, I know how hard it is for the client. The real question here is what is the difference between Mediation and a Collaborative Divorce and which option is best for me.
An Uncontested Divorce is one in which the parties have agreed on all issues and the lawyer prepares the documentation. There are no contested issues.