What is most important to understand about mediation and collaborative law is we do not get to the negotiating stage until everyone is comfortable with the information which has been exchanged. For example, I may hear from a client that she does not believe her spouse will share all his compensation information or about all the assets in that spouse’s name. That client will express apprehension about commencing negotiations because she will not feel ready to negotiate and worry that she will feel bullied into making decisions. I let everyone know we will NOT start negotiations until everyone feels satisfied with the information that has been exchanged. If we don’t know something, we ask questions and gather information until all our questions are answered. This is important for both parties to understand because any agreement reached that is based on incomplete information will be precarious and subject to falling apart or not followed later. It is simply not worth it. What are the key differences between collaborative divorce and mediation? In general, mediation involves a mediator, the two parties, and their respective lawyers. The collaborative process involves a financial neutral, a coach, the parties and their respective lawyers. A significant difference between the two is participation in collaborative divorce requires the signing of a participation agreement. This agreement provides that if the parties are unable to resolve all of their issues within the collaborative process and if they then chose litigation, then none of the professional participants in the process can continue in the case. The parties will each need to retain new attorneys and none of the information shared in the collaborative process can be used by the newly retained lawyers later in litigation. Many professionals refer to the collaborative agreement as the glue which keeps the process together. Mediation, on the other hand, can be started at the beginning, middle or end of a case to resolve individual or the global issues. For example, parties may participate in mediation to finalize their parenting agreement, then return to traditional litigation to resolve financial issues, all the time with the same lawyers. What is the process for collaborative divorce and what are the possible outcomes of collaborative divorce in Illinois? If someone wants their divorce to be collaborative, they need to seek out a lawyer who is collaboratively trained. In Illinois, this can be done by going to the Collaborative Divorce Illinois website. Most States have a collaborative community, and an internet search should provide resources for individuals in different areas. The reason most people should resolve their case outside of court as opposed to trial is agreements reached outside of court tend to have fewer post-decree issues, tend to preserve the relationship between the parties, and tend to cost less in terms of time and money overall. A couple who has dissolved their marriage through the collaborative process or mediation enjoy these benefits as well as increased privacy of intimate family issues, more control over the outcomes, and greater bandwidth to pick 20 LAWYER MONTHLY APRIL 2024 While my entire 29-year career has been focused on the practice of family law, it was not until after about 10 years of practicing that I more adamantly focused on resolving issues outside of court.
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