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Mediation, Collaboration or Negotiation in California Divorce

Studies show that people going through a divorce are happier with the final orders when they developed and agreed upon them between themselves, as opposed to having orders imposed upon them by a judge. So what's the best option? Mediation, collaboration or negotiation in the litigation context? 

If you are contemplating divorce, you should speak with an attorney about the various options in light of your goals and concerns. No judge can know your family like you do. While turning the decision over to the court is unavoidable in some matters, even contentious issues can often be resolved with the help of an attorney. 

If you can reach acceptable agreement with your spouse on important divorce issues like property division, spousal support, child custody and child support, at least you have had input and a measure of control over the result. If a judge has to decide, he or she must consider the evidence and law and make his or her best judgment, but you will not be able to predict the outcome.

It may also be possible to reach agreement on some, but not all, of the legal issues in divorce. In this situation, the judge would only have to decide those issues still contested by the parties.

Traditional negotiation

Historically, it has been the practice in most cases for the parties to try to negotiate a settlement of the legal issues in divorce through negotiation conducted through their respective lawyers. A legal professional is often able to facilitate an agreement in this manner.

Mediation

In mediation, the parties hire a neutral third party with special training in conflict resolution and communication. The mediator acts as a go-between, working with the parties through tough issues using problem-solving techniques, in an attempt to reach agreement. Each party may and should consult with his or her own attorney at any time during the mediation process. 

Collaborative Divorce

Collaborative divorce is a fairly new process in which the parties enter into a participation agreement which provides that:

· They agree not to go to court, but to reach agreement on all issues collaboratively.

· They will negotiate respectfully and honestly in four-way meetings with their lawyers.

· They will hire third-party neutral professionals as needed to get information needed for informed negotiation. For example, they could hire a financial or tax advisor, a parenting consultant, a divorce coach (to help through negotiation impasses), an appraiser, a real estate professional or others.

If they cannot agree and the collaborative process breaks down, they will have to hire new attorneys and proceed toward divorce using a different process.

In collaborative divorce, as in mediation and negotiation, the parties can create solutions unique to their family situation.

Factors to consider

In deciding which process to choose, certain things may influence your decision. For example, do you and your spouse have a generally positive relationship despite deciding to divorce? Does he or she have a history of honesty and openness so that you can trust they will be forthcoming in a more informal setting than court? Is there any history of emotional, verbal or physical abuse? If children are involved, which avenue would put the least amount of strain on the children? Are there valid reasons to keep the proceedings more private than public (e.g. contentions of the parties reduced to public records; hearings in open court, etc.)?

Alternate dispute resolution techniques like mediation and collaboration are often cheaper, faster and less stressful than traditional divorce litigation. All cases are not good candidates for out-of-court resolution, but most are. Talk it through with a family lawyer to understand what considerations you should weigh in your decision about how to move forward.

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