As a divorce mediator, the attorney facilitates the conversation, but does not give legal advice (i.e., he or she will provide legal education but will not provide an opinion on the outcome should the case go to court). Both clients generally attend each meeting together, although the attorney will occasionally meet with clients separately if necessary. The attorney explains the process to both clients, how the decisions they make will affect them, and takes responsibility for preparing court paperwork. Mediation clients generally split the cost evenly between them, although this is sometimes subject to negotiation.
Mediation is confidential, meaning the attorney will not divulge any information that is discussed in meetings to outsiders nor will he testify if the mediation does not result in an agreement. Clients will also be prohibited from testifying about what happens in mediation. This encourages the parties to make creative proposals and say what they need to say without being concerned about regrets.
- Mediation + Coach. Sometimes an attorney will invite a “coach” into mediation sessions where the parties have emotional issues that make it more difficult to resolve the issues. Coaches are highly trained at diffusing stressful emotional situations and helping the parties to clarify those things that are the most important to them.
In collaborative practice, the attorney represents one client. The clients and attorneys all work together, but just like mediation the issues are kept out of court until the final agreement has been reached and the paperwork is ready to go to court. Through this process the attorney is the advocate for his/her client although s/he is not the attorney of record with the court. In the event the collaborative process does not resolve the dispute, the client cannot use the collaborative attorney in court and new counsel will need to be retained. This promotes settlement by ensuring that all parties and their attorneys are focused on settling the case rather than focusing on preparing for court.
Mediation and Collaborative practices are also known as “alternate dispute resolution”.
3. Representation (litigation)
This is the most commonly known and oldest way to go about dissolving a marriage or resolving custody and support issues. In the traditional litigation model both parties are represented by an attorney. The attorneys handle all negotiations and those negotiations are usually conducted with the threat of a court hearing in the background. If an agreement cannot be reached, the matter is taken to court for the judge to decide.
4. Do-it-Yourself Divorce
If your situation if fairly simple and you and your spouse agree that you have complete information regarding assets and debt and are both in agreement with how your property and debts should be divided, you may be a candidate for a do-it-yourself divorce. Typically this is not the best approach if there are children involved but can be successful if you and your spouse are both comfortable with the arrangement regarding child custody and support and shared parenting. There are resources online to assist you with an uncontested divorce and forms provided by the state in which you live.