What’s the difference between Mediation and Collaborative Practice?
Mediation and Collaborative Practice are also known as “alternate dispute resolution”.
In Mediation, Matthew facilitates the conversation, but does not give legal advice (i.e., he 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 he will occasionally meet with clients separately if necessary. Mr. Long explains the process to both clients, how the decisions they make will affect them, and we take responsibility for preparing court paperwork. Our mediation clients generally split the cost evenly between them, although this is sometimes subject to negotiation. We do not ask for a retainer for mediation, but we ask for the payment of fees incurred at the end of each session.
Mediation is confidential, meaning Mr. Long 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.
In Collaborative Divorce, Matthew represents one client and your spouse also has an attorney who is trained in Collaborative Divorce. 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. 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. The cost of this divorce option is usually lower as the parties are avoiding expensive discovery and duplicative efforts. The primary benefit, however, is that collaborative practice is usually a much more positive way to proceed.
What is meant by a “retainer?”
A retainer is a deposit of fees paid in advance. In most cases there is a relatively small “minimum fee,” paid in exchange for our agreement to represent you (generally $500). The minimum earned fee is not refundable, but the remaining deposit, and any future deposits, are refundable in the event the matter is resolved without the need to fully utilize the deposit. The amount of the deposit is determined by us after the initial consultation and will be based on our evaluation of the case and the likelihood of events requiring a sudden substatial committment of time. Although a retainer is typically requested for a collaborative process, the retainer is usually much lower than traditional litigation because the process is significantly more predictable.
Please understand that a retainer does not represent the total fees that will be incurred nor does it even represent an estimate of the total fees. Our experience is that the cost of the entire process will usually exceed the initial deposit, sometimes by a great deal. The initial retainer is designed as a deposit to ensure payment of fees that are estimated to be incurred during the initial phase of the proceedings. When the initial deposit is nearly depleted, you should anticipate the possibility that an additional deposit will be required as it becomes clear what course the process will be taking.
How much will my divorce cost?
The cost of the procedure will be billed at an hourly rate. It is therefore impossible to predict with any certainty what the total cost of resolving the case will be. This is because we have no control over how either party will react to the various proposals or situations that may arise. The total time it will take to resolve the matter will therefore depend on how cooperative and reasonable both parties are.
The most effective way of controlling the cost of your divorce is to reach an agreement with your spouse that you will proceed through mediation or collaboration. Although neither process can be described as truly “inexpensive,” mediation and the collaborative process allow you and your spouse far greater control and will provide you with much more support in your efforts to reach a reasonable solution early (and therefore less expensively). Although many people recoil at the idea of spending yet more money on a support team, especially when they can see that they will be spending such a large amount of money on their attorney. This is, however, an example of being “penny wise and pound foolish.” Utilizing a divorce coach helps you to get clear about what is important to you, thus helping you to avoid asking your attorney to pursue an issue that upon further reflection isn’t very important. A divorce coach can help you process your feelings in a healthy way, so you don’t end up processing those feelings with your attorney (who is no doubt willing to help, but without the extensive training and at a much higher cost than the coach). A neutral financial professional can help you sort out the information you will need to disclose at a much lower hourly rate than the attorney. Although these important members of your team will charge an additional fee, their work will allow the attorneys and mediators to focus on what they do best – helping you analyze your options and determine what solutions will meet both your needs and your spouse’s needs (who won’t agree to your proposals unless their basic needs are met by the proposal).
Why do I want to avoid a traditional divorce (i.e., litigation)?
The traditional divorce system, known as “litigation,” typically involves a series of moves made by attorneys that are designed to lead either to a trial in front of a judge, or a settlement based on the fear of what might happen at a trial. Attorneys in the litigation system are rewarded for conflict, inefficiency, and irresponsible behavior. Although not all attorneys are intentionally taking advantage of this system, they are viewed as “professional” when they address their clients’ fear and anger by emphasizing the search for bad conduct while rarely addressing the high financial and emotional cost of that quest. Communication between spouses is discouraged, control is taken from the client and those breaking the rules are rarely punished. Clients are left in fear of the unknown, wondering how bad all of this will get, often without much control over bringing it to a close. This is a system that works poorly for the average person while it caters to those with unlimited resources. Rarely are clients offered an alternative.
Mediation and Collaborative Divorce are designed to put the client in the driver’s seat, requiring only that clients make informed decisions after having examined the various choices each step of the way. Divorce professionals who focus on Mediation and Collaborative Divorce are trained and rewarded for calming the conflict and being efficient and transparent.