There’s a lot of confusion about divorce options, especially because the words we use – negotiation, collaboration, and mediation, especially – sound the same to most non-lawyers. I find that people tend to have a lot of difficulty in using the words correctly, and in understanding the legal processes at work behind the scenes of each.
It’s important to understand because, the more you know, the better you can make decisions for yourself and your family.
Maybe the title here today is a little misleading. I only mention mediation. But I see people use the word incorrectly all the time, so I don’t want to start by answering a question, assuming that I’m answering it rightly, but not delving into relevant details at all. That’s not helpful!
Today and Friday, I’m going to talk about each to make sure that you know what specific method we’re discussing (and what’s involved), and go into the advantages and disadvantages a little bit.
When a lawyer refers to negotiation as part of the divorce process, they are usually describing working with an attorney (often, on both sides) to help the parties reach a separation agreement.
Negotiation can use a number of different methods – we’ll sometimes have phone conferences, send letters or emails back and forth, or even meet up in person to have a settlement conference (which, except for the presence of lawyers, looks a lot like mediation).
The end goal is the separation agreement – a legal document that divides all the assets, liabilities, and responsibilities of the marriage between the two parties.
As far as working with an attorney goes, negotiation is often the cheapest, easiest way to go.
Advantages of negotiation
The main advantage of negotiation is that you work with an attorney one on one to help you reach a resolution. Your attorney advises you about your rights and entitlements under the law, coaches you when she feels you should ask for more, and will even discuss with you what might happen if your case or a particular part of it were in front of a judge. Your attorney is YOUR advocate, and she has an ethical responsibility to represent you zealously.
An attorney cannot be shared between a husband and a wife in a divorce case; your attorney represents you alone, and it is only your interest that she is focused on.
An attorney is experienced in drafting separation agreements. Because we also represent clients who’ve had bad agreements drafted the first time around, we also have the knowledge of how to draft an agreement in the best way possible to serve our client’s interests and AVOID going back to court later on – which can save a significant amount of money over, say, a mediator or a non-attorney drafting the agreement on their own.
If you aren’t able to reach an agreement, your attorney can also transition to represent you in court. You won’t have to familiarize someone else with the details of your case. Likewise, your attorney can represent you in the uncontested no fault divorce later, if you are able to reach an agreement.
Disadvantages of negotiation
Like any case where you’re trying to negotiate an agreement, if you aren’t able to reach an agreement the only other alternative is to go to court. If negotiation fails, you’ll have to file for divorce in the court. (Good news, though: your separation agreement lawyer can represent you!)
It’s also not free. Compared with drafting your own agreement and negotiating on your own, it’ll cost you more. Well, maybe that’s not entirely true – signing an agreement where you are unfamiliar with your rights and entitlements can easily cost you tens or hundreds of thousands of dollars (which is probably the worst/most expensive mistake you can make in a divorce case). Still, there’s no question that there is a fee for the attorney’s time and expertise. Family law attorneys charge an hourly rate, and usually both the husband and the wife retain their own independent counsel.
Negotiation, though, is only one way – though probably the most popular way – to get an agreement drafted.
On Friday, we’ll talk more about mediation and collaboration, so stay tuned.