Meditation or Collaborative Divorce: What is the Difference?

If you have decided, either alone or with your spouse, to end your marriage, it is likely one of the most difficult decisions you have had to make in your lifetime. Understand that there are many more decisions that stem from a legal separation and/or divorce. One of the more pressing issues to address is the process for how you will pursue the divorce in Huntersville, North Carolina. You may have heard of divorce litigation and the stress, cost, and time that come with such a court proceeding. There are, however, additional less well-known options know as alternative dispute resolution (ADR) methods that may be used to resolve a divorce. Two of these are divorce mediation and collaborative divorce. While similar in some respects, there are significant differences between the two that divorcing parties should understand.

Understanding Divorce Mediation

As mentioned previously, divorce mediation is known as an alternative dispute resolution (ADR) process by which a third-party neutral helps a couple resolve the issues that arise from their legal separation and/or divorce. North Carolina law does not require that the mediator be a licensed attorney. In fact, there are several divorce mediators in North Carolina who are not lawyers. When a couple decides to mediate their divorce, attorneys are not required to be involved in the process, unless either or both spouses choose to involve them. If a couple prefers to divorce without an attorney, mediation divorce may be an option.

The main role of the divorce mediator is to:

• Help the spouses understand and identify relevant issues that need to be addressed in the divorce;
• Act as a facilitator and peacemaker in areas of contestability while guiding the parties in the negotiation process;
• Provide options for the couple that help them create a mutually acceptable agreement customized to their family’s needs; and
• Draft a majority of the paperwork necessary for the divorce, including a Memorandum of Understanding (MOU) outlining the terms of the parties’ agreement.

Understanding Collaborative Divorce

Collaborative divorce, on the other hand, is a type of hybrid between traditional divorce and divorce mediation. Unlike divorce mediation, there are several parties involved in collaborative divorce aside from the couple including individual attorneys for each spouse as well as professionals who can address finances, child welfare, and psychological matters during the process.

Prior to engaging in the collaborative divorce process, the parties sign a participation agreement that outlines several “ground rules” for the process. These include, but are not limited to:

• Acknowledging that the collaboration process is not intended to be adversarial;
• Agreeing that neither party will not seek for the court to intervene;
• Consenting to third-party involvement of professional consultants or experts;
• Agreeing that any children will be as much as possible insulated from the process;
• Understanding that the collaboration may not result in a settlement;
• Agreeing to come to the collaboration in good faith and with integrity;
• Knowing that a party’s misrepresentation or withholding information can result in counsel’s withdrawal and subsequent failure of the collaboration;
• Agreeing that the attorneys involved in the collaboration cannot handle the manner in court proceedings and would be required to withdraw from the case;
• Agreeing that cancellation of the collaboration must in writing to the attorneys; and
• Pledging to negotiate and engage the spirit of collaboration.

Using ADR to Resolve Divorces

There are several reasons to mediate your Huntersville divorce. There are also, however, several reasons to choose collaborative divorce over mediation. Below are some good factors to consider when deciding whether to use an alternative dispute resolution to resolve your legal separation or divorce.

It is often the best choice to use either alternative dispute resolution when:

• You want to make decisions that are best for your family: This is because divorce mediation places the children front-and-center when it comes to making decisions as parents. The standard in all North Carolina family law matters deciding matters involving children is whether or not it is in the “best interest of the child.”
• You want to have control over the settlement terms: Both you and your soon-to-be ex spouse will be able to have a direct say in creating the terms of your divorce settlement agreement and the conditions therein and it will only be final once both parties agree;
• You want the agreement to be fair to both parties: The individuals facilitating your settlement focus on helping the couple reach an agreement that they both consider to be fair;
• You want to keep the peace: A non-adversarial and cooperative process, the mediator will help the parties come to an agreement on the easy and not-so-easy issues in order to peacefully resolve the matter without the need for a divorce lawyer;
• You are both willing to cooperate and be transparent: Full disclosure and transparency are required in both mediation and the collaborative divorce process if the spouses sincerely want an amicable resolution.

If you or someone you know is interested in learning more about collaborative divorce process in Huntersville or anywhere else in North Carolina, contact the family law attorneys at Arnold & Smith, PLLC.