Timing: The Key Difference When it Comes to Collaborative Divorce

If you have been researching the process of what the divorce process looks like, or know someone who has, you have likely heard of the term “collaborative divorce.” Collaborative divorce is an alternative dispute resolution (ADR) that has become more and more popular in North Carolina and throughout the country for couples who do not want to go through costly and often stressful litigation proceedings. Collaborative divorce is less formal, less time consuming, and less expensive than traditional litigation divorce. The key difference when it comes to collaborative divorce, however, is the timing in which this method is used.

Like most other ADR options, such as mediation, collaborative divorce is a non-adversarial process. In theory, both are forms of interest-based negotiations. Likewise, divorce mediation and collaborative divorce is a voluntary process. Neither can be concluded unless and until the parties agree to a resolution and memorialize it in writing or agree to stop the process completely because they have come to an impasse.

One important difference between divorce mediation and collaborative divorce is that in the former the parties are not typically represented by counsel while in the latter each party has his or her own attorney. In fact, collaborative divorce requires that each party has legal representation.

A second important distinction is that collaborative divorce has an efficient process of discovery, which is when the parties seek information from one another relevant to the case. In mediation, there is typically not a phase in the process that requires the parties to exchange important information.

A third important difference is when these two ADR methods are used - in other words, at what phase of the case. Collaborative divorce negotiations happen at the beginning of a marital dispute, before a lawsuit is filed in North Carolina’s family court system. As a result, collaborative divorce has a higher chance of preserving the couple’s relationship, saving costs and fees, and quickly coming to a resolution. Collaborative divorce also aims to avoid the stress and emotional turmoil involved in typical divorces resolved through traditional litigation.

A fourth important distinction is that in mediation, the all the participants involved - clients, attorneys, and the mediator - only spend a short time together in the same room. During this short period of time, referred to as open caucus, the parties are in the same space and able to see and hear one another. After this, they remain in separate rooms and the mediator goes between them trying to negotiate an agreement. In collaborative divorce, however, all participants and their respective attorneys remain in the same room together and are not separated.

Before initiating the collaborative divorce process, the couple and all professionals involved - their respective attorneys and consulting experts - must sign a participation agreement. This agreement stipulates that full disclosure of financial information as well as full confidentially is mandatory. The agreement also stipulates that the couple will reach an agreement in writing on all issues prior to going to court. Additionally, the agreement stipulates that all professional parties involved - including the attorneys - must withdraw their professional services if either spouse decides to move forward with litigation. Once all issues regarding the divorce are resolved and the separation agreement has been finalized, each spouse’s attorney initiates the required paperwork to obtain an official divorce decree from a North Carolina court.

When it comes to divorce mediation, the focus of the process is upon the efforts of the mediator to facilitate an agreement. He or she does the work to find common ground, convey information, provide suggestions, decide what to share, what to highlight, what to diminish, how to reason, and what to think regarding the case. Many times the mediator is the key to a successful mediation. In the mediation process the parties do not collaborate with one another nor do the attorneys but, rather, they rely on the skill and expertise of the mediator to persuade the other party.

Collaborative divorce, on the other hand, focuses not on any one person involved but instead the process. This ADR method is about the participants’ collective ability to have a common goal that guides the discussions, negotiation, efforts, and options to resolve the matter. The process requires that the parties listen to one another, their lawyers, and any third-party consultants to achieve an amicable resolution. The participants must see, hear, and understand the perspective of the other side.

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