When deciding between collaborative divorce vs mediation in Texas, it’s important to understand the key differences. In a collaborative divorce, both parties hire attorneys who agree to withdraw if the collaborative process fails. If you and your spouse reach an impasse, your collaborative attorneys will step aside, and you’ll need to find new legal representation or proceed without an attorney for the remainder of the divorce. In contrast, mediation allows you to work with a mediator to facilitate negotiations while keeping your current attorneys, if applicable.
When you find yourself in a situation where you had to interrupt your divorce to find a new attorney that means several things for your case. First, depending on the circumstances, the new lawyer will need to quickly get up to speed. Do not underestimate the complexity of the issues in your case if you find yourself needing to hire an attorney after a collaborative divorce does not work out for the two of you. Finding an experienced attorney who can jump in and immediately make a difference is essential in this situation.
Choosing between collaborative and traditional approaches
Next, the costs of your case can increase because of needing to find a new lawyer. Consider what may happen if you find yourself close to a total settlement of a case but with only a few outstanding issues. If mediation or trial date is upcoming then the attorney will need to be brought up to speed very quickly. As a result, you may find yourself paying the attorney more than you ordinarily might be due to the degree of difficulty and the speed with which the attorney will have to learn your case.
The other thing that you must come to grips with is that you may experience some degree of anger or frustration at the divorce process due to the problems that you have had with collaboration. It is normal to feel like your spouse let you down or that he or she is to blame for the need to hire new counsel and enter a contested divorce. Either way, your only path forward is to take the divorce case one day at a time and do what you can to resolve the issues through negotiation. That part of the divorce does not change. A divorce in Texas is still based upon negotiation whether it is collaborative or not.
Whether a collaborative process is better for you than a traditional divorce depends on your circumstances. If you and your spouse agree on most major issues, a collaborative divorce may be best. However, if you have many unresolved issues, a traditional divorce might be more suitable. Collaborative divorces are generally less stressful, but challenging ongoing circumstances may require a traditional approach in the end.
What is collaborative mediation?
Collaborative mediation combines aspects of traditional mediation and collaborative divorce. The process aims to maximize efficiency in terms of both duration and the outcomes achievable within this timeframe. Collaborative divorces encourage settlement negotiation and cooperation on difficult issues. Mediation allows for you and your spouse to come together in a structured environment to try and work through the outstanding issues in your case. Combining both elements leads many people to a situation where you can get a lot done in your case in a fairly short amount of time.
Here is how collaborative mediation works. In this setting, one attorney, a collaborative law mediator will guide you and your spouse through a process where you can get to discuss important issues related to your case. There are financial, parent-child, and other issues relevant to your divorce. As a result, this mediator will have their hands full. However, because the mediator will have been through situations like yours previously, he or she will understand how complex your case is and to what extent he or she needs to “push” both of you towards a consensus.
When it comes to financial issues you and your spouse may need some help in figuring out how to divide up your community estate. This issue can become highly complex due to the various factors that may be relevant in your life. Your age, work experience, and education are all relevant considerations. Additionally, the goals of you and your spouse both short-term and long-term after the divorce will factor into how you negotiate on finances. Having another voice be able to weigh in on this situation can be helpful.
Conservatorship and child custody issues in divorce
For family-related issues, conservatorship and custody are almost always at the top of the list in terms of priorities for parents like you. Being able to make decisions and having the responsibility to care for your kids are the hallmarks of conservatorship discussions. Being able to make educational, health, and other decisions for your kids is a central part of being a parent. Likewise, being able to provide your child with medical care, education, and home are the duties most relevant to parenthood.
Child custody becomes relevant when we consider the degree to which you can spend time with your children. This is typically the most negotiated-upon subject. No parent wants to lose time with their children because of a divorce. While that may be unavoidable to an extent, you will still want a schedule that suits you and your family. You and your spouse are best positioned to devise a plan for these issues.
However, a collaborative mediator can help you to problem solve using creative solutions to time division issues. This subject can get competitive in terms of both parents wanting to be able to have as much time with their children as possible. Desiring this is understandable, but you should be prepared for some degree of animosity. This animosity may be fleeting but it will be serious. Being able to spend time with your children is probably the most specific fear that parents have about their children.
Benefits of collaborative mediation in divorce resolution
A collaborative law mediator will help guide you and your spouse toward a resolution. The more information of the two you have the better you will be able to make decisions that are based on fact and objectivity rather than subjective opinions and emotion. While collaborative mediation cannot resolve every issue in your case, it excels in aiding when you find it challenging to objectively assess the circumstances. Having another perspective can be highly beneficial, reducing overall conflict and helping both parties find common ground.
As you begin to gain more evidence in the case you may change your opinion on any number of subjects. For example, you might have had a specific opinion about how your community estate should be divided based on your understanding of your financial situation. However, through document sharing, you may have come to find out that the state of your finances was quite different than what you had been led to believe previously. At that point, you may be more willing to approach a settlement based on the terms suggested by your spouse rather than based on your settlement proposal.
One of the main areas where spouses in your position may have some degree of disagreement would be alimony. Supporting your spouse after your divorce is over is enough to and many negotiation sessions for spouses. These folks may be uncomfortable with the idea of financially supporting a person that they are not married. However, you may also be in a position where you desperately need some degree of financial assistance after your divorce for any number of reasons. The real question isn’t whether you are comfortable with receiving or paying alimony, but rather what a judge would likely decide if this issue cannot be resolved through settlement.
Alimony and spousal maintenance in Texas divorce
From the outset, it’s important to understand that family court judges are generally reluctant to order alimony payments. If granted, such payments would typically be termed as spousal maintenance and would be limited in scope. Texas only created statutes related to spousal maintenance a relatively short period ago. As a result, many judges are more apt to award a disproportionate share of your community property to a spouse rather than award spousal maintenance.
However, you may find that in sharing information regarding the family finances your spouse does stand to benefit from spousal maintenance. You may have assumed that he or she would be able to provide for themselves after a divorce given the amount of Community property that they would be receiving. However, the specific types of Community property or even their limitations in immediately landing a job can impact the need for alimony or spousal maintenance. Even spouses who are otherwise in agreement on many areas of their case can disagree on this subject. Being able to mediate collaboratively means that you can exchange information in a relatively stress-free environment and understand where the other person is coming from much better.
Cost considerations in collaborative mediation and divorce
One of the downsides of collaborative mediation and collaborative divorce, in general, is that the costs may be higher than a traditional divorce due to the increased usage of professionals and experts. For example, you and your spouse may have agreed to utilize parenting professionals, financial professionals, or other people to help negotiate your way through a divorce. Many times, in a situation like this these professionals would need to be present at every negotiation session or mediation.
The costs of their being present on a near-constant basis in your divorce can add up to be significant. You should consider this with your spouse before agreeing to a collaborative divorce. If nothing else, you may want to consider limiting the use of experts and professionals in this regard. For example, you may agree to utilize a financial expert only when necessary. This way you can limit their usage in your case and avoid unnecessarily high costs associated with divorce.
Collaborative mediation is a combination of collaborative divorce and traditional mediation
In a collaborative mediation session, you will find that you still have a great degree of privacy and confidentiality. Mediation allows the two of you to be able to keep the contents of your discussion from going outside of that mediation room. If the subject matter that you will be discussing is especially sensitive or if you have a greater need for privacy than most then a collaborative mediation still allows for you to keep these sorts of matters private rather than having them see the light of day. Keep in mind that in a hearing or trial setting most anyone can waltz into the courtroom and watch the proceedings. Depending on the subject matter of your hearing this can be extremely embarrassing.
The neutrality and efficiency of collaborative mediation
Next, the mediator is still a neutral party. You do not have to worry about the mediator favoring your spouse over you or vice versa. Rather, the mediator will be there not to provide advice but rather to help you all arrive at a point in the discussion where you can have meaningful settlement negotiations. This is an underestimated part of the process. Being able to rely upon the mediator to be independent and neutral is a great part of any negotiation process. This is true whether it is a collaborative mediation session or a traditional mediation session period. You will be able to mediate with that person for a particular length of time. That way you will know in advance how much time you must spend walking through these issues. This will allow you to better budget your time and money effectively.
A collaborative mediation session puts you in a position where time is money and the time to reach a consensus on any outstanding issues is now. Do not underestimate just how much time is wasted in a divorce. In a traditional divorce, parties can spend a great deal of time waiting around for one another to make offers and counteroffers. In mediation, there is no such waiting period you will be asked to make settlement offers encounter offers given the limited amount of time.
Efficiency and positive relationships in collaborative mediation
As an attorney that I know is fond of saying: deadlines spur action. I have seen people accomplish more in a four-hour mediation session than they did during a four-month divorce leading up to that mediation session. Hey, a collaborative law environment further encourages parties like you and your spouse to put aside whatever differences you must efficiently arrive at positive outcomes for the two of you.
Additionally, Mediation in a collaborative environment encourages positive family relationships moving forward. This is true, especially in the context of co-parenting. The feeling in many divorce cases is that the two parents could not be happier that they are moving on with their lives. However, these parents stand to forget that They will be spending the next several years co-parenting together as a team. Mediation is great at causing parents to remember that even if they are technically adversaries in a divorce we have some time to spend as teammates in raising children together. The collaborative divorce process in general and mediation specifically eliminates much of the desire or mindset geared towards considering your spouse as an adversary. It can be to everyone’s advantage to consider your spouse a teammate even in a divorce.
Conclusion
When exploring collaborative divorce vs. mediation in Texas, it’s essential to understand how each method operates to make an informed choice. In a collaborative divorce, both parties hire attorneys who agree to withdraw if the collaborative process does not succeed. This approach emphasizes direct negotiation between spouses and their attorneys, with the understanding that if an agreement cannot be reached, the attorneys will no longer represent them. On the other hand, mediation involves a neutral third party who facilitates discussions between the spouses, aiming to help them reach a mutually agreeable solution without the need for their attorneys to withdraw.
Choosing the right approach depends on your specific situation and preferences. Collaborative divorce provides a structured framework with legal guidance, while mediation offers a more flexible, less formal setting to resolve disputes. Both methods aim to minimize conflict and promote a cooperative environment, which can be beneficial for maintaining healthy co-parenting relationships and ensuring the well-being of the children involved.
To navigate these options effectively and determine which method suits your needs, consider consulting with a family law professional. They can provide personalized advice and help you understand how collaborative divorce vs. mediation in Texas can impact your unique circumstances.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post please do not does it take to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.
Other Related Articles:
- The Pros and Cons of Collaborative Divorce in Texas
- What is the Downside of Collaborative Divorce?
- Collaborative Divorce: A Peaceful Alternative
- What is Collaborative Divorce?
- Collaborative Law: A Modern Approach to Child Custody Disputes in Texas
- Is Collaborative Divorce in Texas Right for Me?
- Divorce COVID style- Why you should consider a collaborative divorce
- The Roles of a Collaborative Divorce Lawyer
- The ‘Pledge’ – Initiating Collaborative Divorce
- Why Go with the Collaborative Process in a Texas divorce?
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Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
