Collaboration is Not the Same as Mediation or Arbitration

When you go through with a collaborative divorce you agree to hire attorneys (along with your spouse) who must withdraw from representing you if it becomes apparent that you cannot continue collaboratively. An issue may arise that you and your spouse cannot come to terms with an agreement regarding. In that case, the collaborative attorney must move aside and allow you to proceed elsewhere with representation. That attorney will withdraw from your case and no longer be your attorney of record. You may choose to proceed with another lawyer or without one for the rest of your divorce.

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, the new lawyer will need to be brought up to speed quickly depending on the circumstances of what is going on. Do not underestimate the complexity of the issues in your case if you find yourself needing to hire an attorney after a collaborative divorce did 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.

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 works better for you than a traditional divorce is really up to your circumstances. As with any divorce, the specific circumstances of your case are very important. If you and your spouse agree on most of the major issues of your case and life then a collaborative divorce may end up being for the best. On the other hand, if you have many issues that are not close to being resolved then a traditional divorce may be better for you. A collaborative divorce is almost surely less stressful than a traditional divorce. However, if there are enough circumstances ongoing that are difficult to work through then you may need to do a traditional divorce, ultimately.

What is collaborative mediation?

Collaborative mediation combines aspects of traditional mediation and collaborative divorce. The process attempts to be as efficient as possible in terms of how long it takes as well as the results that can be achieved in this period. 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 can be an extremely complicated issue given the 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.

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 probably best suited to come up with a plan on issues like this. 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. The desire to do this is understandable it is one where 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.

A collaborative law mediator will help guide you and your spouse towards 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 the collaborative mediation process cannot remove all a motion from your case it is well suited to help when you are struggling with being able to objectively view the circumstances surrounding your case. having another set of eyes to view your case can be extremely helpful and can decrease the overall acrimony that the two of you are facing.

as you begin to gain more evidence in the case you may change your opinion on any number of subjects. For example, you may have held a particular opinion about how your community estate should be divided given what you thought you knew about the state of your finances. 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 on 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 to ask isn’t whether you are comfortable with receiving or paying alimony but what a judge would be likely to do if this issue cannot be settled.

From the outset, one of the things that you should be made to understand throughout your case is that family court judges are not overly excited to order alimony to be paid. Specifically, alimony in this context would be known as spousal maintenance if it were ever ordered by a judge. In that case, the alimony that is paid would be limited in nature. 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 that 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.

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.

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. 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.

Finally, the less you and your spouse fight during the divorce the better it is the previous change. I can think of very few instances where a great amount of macaroni between parents ultimately leads to better outcomes for kids. With that said, eliminating the need for conflict typically encourages the strength of this family as far as parenting is concerned. The more willing you are to set aside past disagreements with your spouse the better off your family and children will be. To learn more about the collaborative divorce process why not give our law office a phone call today?

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.

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