Is mediation cheaper than divorce with an attorney? Part 2

The fact that, in English, the words ‘negotiation’, ‘mediation’, and ‘collaboration’ mean something close to the same thing creates confusion for a lot of women who are new to the world of divorce and the terms that people familiar with it use to describe certain parts of the practice.

On Wednesday, we discussed negotiation, which is typically what we call a divorce where both parties retain divorce attorneys and negotiate (for lack of a better word) the terms of their own separation agreement.

Today, we’ll talk more about two other methods – mediation and collaboration – that are often confused with negotiation, including a discussion of the various advantages and disadvantages associated with each.

Mediation

Mediation is a word we use to describe the negotiation process when a mediator is involved. I know, it’s confusing. But instead of working with a lawyer, you work with a mediator. A mediator is different than an attorney in a number of ways. For one thing, you and your husband can share one mediator, which you can’t do with an attorney. For another, a mediator may or may not be an attorney – but it doesn’t really matter because, in any case, he is not hired to be your attorney.

In most cases, mediation takes place in person. Both parties and the mediator are present. The parties go over the issues in the case in the hopes of reach an agreement and signing a separation agreement.

Advantages of mediation

Reaching an agreement is almost always better than going to court, because it gives you control over how the assets and liabilities are divided. It also allows you to maximize the value of your assets; you may take 100% of one asset (rather than dividing and splitting) in exchange for him getting 100% of another.

In mediation, since you share a mediator, there’s one cost – the mediator’s hourly rate, usually. It may be less expensive or more expensive than having separate attorneys (in my experience, the mediator has a higher hourly rate to account for this), but there’s just one cost. Ultimately, it depends on how long it takes for the two of you to reach an agreement (which is the same as if you worked with an attorney).

Disadvantages of mediation

The mediator is not there to be YOUR attorney. The mediator cannot give you legal advice, can’t tell you what a judge might do, can’t push for your advantage over your husband’s, etc. The mediator’s ONLY job is to facilitate an agreement – any agreement, it doesn’t matter to the mediator.

It’s a high stakes environment, and not well suited for parties with an uneven balance of power (like where you have a narcissistic or otherwise abusive spouse).

The mediator – especially if he is not an attorney – won’t have experience drafting good agreements that stand the test of time.

Attorneys often work on cases where bad agreements were entered into first, so we’ve crafted our agreements to reflect those situations and to help our clients avoid them. No one – not even an attorney – has a crystal ball, but a mediator is particularly poorly placed to anticipate these challenges and to draft an agreement that overcomes them. In some cases, mediators aren’t even that well versed in the law.

As an interesting anecdote… I once had a mediator tell me that he negotiated an agreement where the husband paid a lump sum of child support in the agreement. The wife later petitioned the court for child support, and the court awarded monthly child support – because the ‘best interests of the child’ and the ongoing nature of child support isn’t met by a one-time lump sum payment. The mediator kind of shrugged, like it was just plain bad luck. But it wasn’t – it was TERRIBLE mediation work!

A mediator also can’t represent you later if you aren’t able to reach an agreement or if you need to finalize your uncontested divorce. In either case, you’ll have to do it yourself or hire an attorney to handle it. A mediator (even a mediator who is also an attorney) can’t turn around and then just represent one or the other of you as your lawyer, even for the purposes of an uncontested divorce! Our ethical rules require that the attorney represent ONE party only, not both. Having been a mediator for the other is a conflict of interest, and that attorney/mediator can’t even handle an agreed upon no fault uncontested divorce for you.

Collaboration

Yes – yet ANOTHER word that means essentially the same thing. (I didn’t say I didn’t know why this was confusing!)

A collaborative divorce is really, really different than a mediated or negotiated divorce. Collaborative divorce refers to a very specific structure. In a collaborative divorce, you both agree to share any information between the two of you and pledge not to go to court.
You both hire collaboratively trained lawyers, and work with a team of professionals, including a divorce coach for each of you, a neutral financial expert shared between the two of you, and a neutral child expert shared between the two of you.

In a collaborative divorce, the end goal is still the same: to reach a separation agreement. But you go about it a little bit differently. You meet with the team, both collectively and separately, at various points throughout the process as you work through the issues.
Because of your pledge not to go to court, if you aren’t able to reach an agreement, you and your husband have to retain different attorneys.

Advantages of collaborative divorce

Collaborative divorce has a 99% success rate! The only people who choose to go this route are ones who are really invested in making the separation agreement a reality. (That’s not to say that the process is easy – it isn’t ever easy, no matter which path you choose.)
Compared with a litigated divorce, collaborative divorce is often cheaper. It’s never possible to say ‘always’ cheaper, though, because even negotiated or mediated cases have the potential to become staggeringly expensive, depending on the issues involved and the willingness of the parties to agree.

Sure, you have a lot of professionals involved here, which means that the up front costs can be more, but ultimately it’s often a cost effective way to reach an agreement that takes everyone’s needs into account – something that you can’t be sure of if you put your case on in front of a judge!

Knowing that your case really can’t go to court – or at least, that you’d have to change attorneys if it did – is often a huge stress reliever. It gives you the freedom to negotiate your divorce in peace, without the threat of litigation hanging over your head, and making you feel (or do) things that are irrational!

You also have the advice of a number of different professionals, which helps to ensure that your finances and your children are looked after. You’re not making decisions in a vacuum; you’ve enlisted the support of professionals who can help you ensure that you’ll be in the best position possible post-divorce.

Disadvantages of collaboration

Collaborative divorce is harder to do than most ‘types’ of divorce because you have to know about it – and hire a collaboratively trained attorney – from the beginning. Not every attorney does collaborative divorce, so sitting in any old attorney’s office isn’t necessarily going to ensure that you’ll get information about collaborative divorce as an option.

In our opinion, there’s not nearly enough information out in the world about collaborative divorce, which means that people who would really benefit from it don’t necessarily hear about it. That, and the fact that you’ll have to convince your husband, too, is a major disadvantage. Having both parties buy in from the beginning can be a challenge.

It’s also a little intimidating. People think, “All those professionals! Surely it’ll cost a fortune!” And it’s true – almost any kind of divorce CAN cost a fortune! But it doesn’t have to, and the benefit of the experience of the professionals involved can help you ensure that your divorce is as healthy as possible.

Which option is the cheapest?

I know, I know – you came here to talk about costs specifically. And costs are important to consider, when you think about your options. Especially as you prepare to divide it all up between the two of you, plus pay for the divorce process itself (mediators, attorneys, collaborative, filing fees, blah blah blah) – it really adds up.

It’s intimidating, and you want to know what it’ll cost.

The good news is that most of these models will, most of the time, cost less, ultimately, than a litigated divorce. Again, it’s not possible to suggest that it will ALWAYS cost less.

In any case, the cost involved is directly related to the time expended. The longer you fight it out and fail to reach an agreement, the more your case will cost. Most professionals involved in these cases charge an hourly rate, so that’s a great idea to get an idea of how much it’ll cost you to pursue a divorce with that professional’s involvement.

At the end of the day, though, a lot of it is down to you, your husband, the choices he makes (whether he’ll consider collaborative, for example, or he’s hell bent on hiring a ‘pit bull’), and your ability to reach an agreement. What issues are involved? Traditionally, custody and visitation and spousal support are the most contentious.

But it’s hard to guesstimate costs up front. The best thing you can do is to talk to an attorney about all of your options, and come up with what you feel is the best solution for you.

For more information or to discuss with a licensed and experienced Virginia divorce attorney, give us a call at 757-425-5200.

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