If Peace Is A Forest, Mediation and Collaborative Law Are Sister Trees

By Laura Melton Tucker, December 31st, 2010

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On this last day of the year, when the word resolution holds double meaning, it feels natural to look backward at changes in my practice over the last year, while also looking forward to mediation trends that may take hold in 2011.   Over the last year, more of my clients are choosing to mediate on their own, without getting a court order to do so.  Some are anticipating divorce, and want to have a preliminary conversation to begin the process. For them, mediation is an opportunity to make lists, set priorities, and check in with one another in order to grow more focused, calm and clear.   Some of my divorced clients mediate to fine tune a parenting plan that isn’t working.  Recently, two clients called to schedule mediation because their divorce decree specifies mediation before one party can take the other back to court.  Happily, just a few days before their appointment, they canceled.  The upcoming mediation appointment was enough to nudge the couple toward negotiating a compromise on their own.

An exciting trend afoot in our 6th Judicial District is collaborative law divorce, an open, non-adversarial process that offers a better way to do divorce. To understand collaborative divorce, picture the old approach, first:  two distraught people going to separate attorneys, paying for attorney time to go through the same family and financial history, and sending  their attorneys back to the other camp to do their bidding.  “He said/she said” defines the process, since everything is filtered through a second party.  The interaction mirrors the childhood game of telephone, but with higher stakes.  The process quickly becomes adversarial.

Collaborative divorce offers a different approach.  Agreeing from the outset not to go to court, the divorcing couple hires a team to see them through the process.   The team consists of lawyers, a financial adviser and sometimes a mental health expert who all meet at one table with the divorcing couple.  Information is shared freely.  The financial advisor helps the couple understand tax consequences and long term financial implications of dividing marital assets.  The mental health professional counsels the parents about how best to meet the childrens’ needs while drawing up a weekly and holiday parenting schedule. The attorneys empower their clients with legal information so that the divorcing couple can make informed decisions without the financial and emotional trauma of lengthy discovery and the usual court dates associated with an adversarial  divorce.  Collaborative law divorce  is a compassionate process – open, respectful, and intentional.  It is a breakthrough.

Mediation can play a valuable role in a collaborative law divorce. When so many interests are present at the table, a neutral, third party mediator can save time and money by balancing the power, checking in with the clients to see how the process is going and asking questions of all involved to ensure that enough and the right information is brought forward.  The takeaway is that the skills of a good mediator may grace and grease the collaborative divorce process. Wisdom is wisdom, no matter what the source.   If peace is a forest, mediation and collaborative law are sister trees.  Side by side, they share the same root system of empowerment and the sheltering shade of understanding.

Wishing you peace and happiness in the new year!

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