Archive for May, 2013

What is Collaborative Mediation?

By Pamela Donison, J.D.

Trends come and go, what was hot a week ago is now passé, and things evolve.

More and more, I’m seeing a trend towards Collaborative Mediation and it’s client-driven.  In this post I will define Collaborative Mediation and provide some examples so you can determine if it’s right for you.

The only constant is change, which is why I was not surprised to spot this mediation trend among my collaborative colleagues and clients.  The “law” of collaborative work is that it fundamentally requires two attorneys who agree not to litigate.  While the International Association of Collaborative Professionals has not changed their guideline, it seems to be morphing in real life.

IACP defines Collaborative Mediation as:
Collaborative Mediation – Collaborative mediation is a style of mediation where two or more people are encouraged to work toward resolution in a transparent and peaceful manner. The goal is to support the parties to unfold the issues and create fair agreements that will stand the test of time.

Collaborative Mediation is an offshoot of Collaborative Practice in that it uses the “team” vernacular and litigation is off the table.  Some collaborative practice groups (Arizona Collaborative Colleagues included) began incorporating the role of mediator into their collaborative teams as a way to overcome impasse on distinct issues.  For example, the professionals and clients might be unable to resolve a division of business assets, so they would call in a mediator to help tease out a solution. Generally, the role of the mediator in a classic Collaborative Divorce is finite and limited to problem-solving on specific issues (versus global settlement) and the mediator is not with the team for the duration of the case.

 

  • Collaborative Mediation requires a collaboratively-trained neutral — the mediator.  The value of collaborative training for this role is that it prepares the mediator to work as part of a team, to understand and communicate with other professionals and the clients in a collaborative “voice”, and to enhance dispute resolution skills.
  • Collaborative Mediation requires two clients who have committed not to litigate their case.  This is a standard requirement in Collaborative Divorce, but is not the norm in mediation.  In fact, one of the safeguards of mediation has been that if it all falls apart, you can always litigate.  Not so in Collaborative Mediation because the primary intent is to avoid litigation.  A Collaborative Mediation Participation Agreement outlines this requirement.
  • Collaborative Mediation allows other collaborative divorce professionals to be on the team.  While some mediators employ the advantage of other professionals, rarely do they do so as a team approach. In Collaborative Mediation, you will have the same transparency and communication between team members as you would in a typical Collaborative Divorce.

This Collaborative Mediation approach still employs respectful, transparent communications and uses the strength of various professionals.  You can think of it as having a Family Practice Doctor (aka the Collaborative Mediator), who refers you to a radiologist, physical therapist, and lab technician as necessary to help you both make good decisions about your healthcare.

Let’s meet Bob and Barb, who want a Collaborative Mediation for their divorce.  They have selected a Collaborative Mediator who is also an attorney.  Bob and Barb do not have minor children and are good communicators, but are baffled by how to divide their assets and debts in the most optimal way.  By using a Financial Specialist, along with their Collaborative Mediator, Bob and Barb get the assistance they need to make smart decisions.  Both the Financial Specialist and their Collaborative Mediator are neutrals, so when Bob and Barb have constructed their agreements, they are encouraged to engage Collaborative Attorneys to review and explain their divorce decree documents.

John and Janet are another couple who want a Collaborative Divorce and have selected a Family Specialist as their Collaborative Mediator.  John and Janet have two children and are having trouble communicating about parenting issues.  They have worked out a financial agreement on their own.  In this case, the Collaborative Mediator can assist in facilitating communication and problem-solving, but John and Janet may also need to engage a Child Specialist to help them construct a sustainable parenting plan.  When they have come up with their agreements, John and Janet will engage Collaborative Attorneys to draft and file their final decree documents.

Carl and Connie have agreed to try Collaborative Mediation, but can’t agree on other professionals to use on their team.  Their Collaborative Mediator is also an attorney, and she suggests that they do some issue-spotting to find out where they need professional assistance.  As it turns out, these savvy clients have done a lot of research and work on their own, and come to the process well-equipped to brainstorm agreements. Since Carl and Connie are good communicators and are financially sound, they agree to engage a realtor as part of their team to sell their business property holdings.

These are just three examples of a myriad of combinations of professionals that can make up a Collaborative Mediation team.  If you think this approach would work for your divorce, give us a call!

Choose Collaboration ~ it’s sustainable!

A Law Student’s Perspective on Collaborative Divorce

By Molly Moffett

As a law student at Sandra Day O’Connor College of Law at Arizona State University I have focused my practical experience in the area of family law. I view representing a client through their divorce as a great opportunity to help someone through a difficult time in their life by finding their new normal in the smoothest way possible. For better or worse, the thing that sets this area of law apart from the others is the emotional piece of every case that comes from each family’s unique dynamics. Some attorneys tend to add fuel to the fire and use these emotions to increase the length and cost of litigation. Others choose to give legal guidance and support while letting the client make an informed decision about what is best for their situation and their family. What is “best” may not look the same for every family.

The aspect of Collaborative Divorce that I find most appealing is that the client and their family are at the forefront of every decision. After attending the IACP’s Basic Training on Collaborative Divorce I found the following benefits of choosing a collaborative process over traditional litigation most compelling:

  1. Time. The collaborative process is not contingent on the Judge’s calendar. You decide how long or short your process will take.
  2. Money. If you commit to the collaborative process it is possible that your family will have more money to divide amongst yourselves and to go towards your children rather than going towards attorney’s fees and litigation expenses.
  3. Control. You decide what result works best for your family.
  4. Reduce Stress and Anger. Having control over the process will reduce the amount of stress and anger you have from your uncertainties with the legal process and how your interests will be met.
  5. Support. Although in traditional litigation your attorney is there to support you, in the collaborative process the whole collaborative team as a whole is there to support your family.
  6. Children. When parents have more time, money, control, and support, and less stress and anger towards each other, it is inevitable that the children will suffer less as well.

If I were going through my own divorce, especially where children were involved, I would certainly consider the collaborative process as an alternative to traditional litigation. I encourage others to do the same.