Collaborative law is the name given to a form of dispute resolution in which disputes are kept from litigation through a process of troubleshooting and problem solving.  In collaborative law, parties who are engaged in conflict retain separate attorneys and agree to keep the case out of court.

In collaborative law, each party signs a contract agreeing upon full disclosure of documents and the sharing of experts when necessary.  This means that if a real estate appraiser, parenting consultant, accountant, or other outside professional is consulted regarding the disagreement, the parties will agree to cooperate and share the expense of hiring that professional to help resolve the dispute.

The most significant difference between collaborative law and taking a case to court through litigation is the process of collaboration that each party engages in to resolve the dispute.  Most people have heard horror stories of divorcing couples who spend thousands of dollars in a divorce arguing over household items, property or child custody.  When litigation occurs, emotions run high and the “fight or flight” instinct kicks in, causing each party to go on the offense against the other.  However, in collaborative law, rather than attacking unfairly, the parties engaged in conflict discus how they can resolve the situation so that it is a win-win for both interests.  This type of collaborative problem-solving allows each person involved to feel like their voice is being heard, keeping emotional outbursts and tactics to a minimum.

Collaborative law focuses on finding solutions that are agreeable and fair to everyone involved, including the children in cases of divorce or separation.  By keeping negative emotions at a minimum and focusing on working together as co-parents even if they can no longer live together as husband and wife, the divorcing couple can use collaborative law to make the best out of a bad situation so that everyone can move on and heal.

While there is much debate in this year’s presidential election over the topic of same-sex marriage, the reality of the situation still stands: in most states, same-sex marriage is illegal and is not recognized by the courts as a legally sanctioned (and therefore, legally protected) status.  This means that same-sex couples who have cohabitated, shared property, raised children together and built a life together are not given the same legal means whereby to settle their property equally if the relationship fails.

In situations like this, mediation can be a wonderful tool to help settle property or custody disputes after a same-sex relationship ends.  Mediation has been proven to be a highly effective means to reach an agreement that is beneficial to both sides involved in the conflict, and is conducted by a third party who is non-biased and trained in mediation procedures.

Without legal protection, resolving a dispute involving the fair distribution of jointly purchased and jointly owned property can be a nightmare—particularly if the parties are not able to reach an agreement on how the situation should be resolved.  Litigation encourages further disagreement and bitterness, making it difficult to reach a satisfactory conclusion that works for both parties involved in the conflict.

Especially if the same-sex couple has children that they have raised together, determining custody arrangements, child support and visitation can be a tricky process.  A trained mediator will be able to assist the couple in opening channels of communication and allowing each party equal opportunity to explain his or her situation and needs regarding the dispute.

The best part about mediation is its discreteness.  When you litigate a case, your “dirty laundry” is essentially aired to anyone who wants to look into public records.  However, with mediation, your matter is kept private and in strict confidentiality, allowing you the opportunity to pick up the broken pieces and move on with your lives more quickly.

Myth #1: One spouse can dominate the other.
Fact: An excellent mediator will make sure there is balance of power between the spouses and applies strategic techniques to resolve any imbalance. If one spouse shows continues dominating behavior, the mediator will temporarily halt the mediation instead of allowing it to continue. However, there is always a possibility that the mediator is not aware of any power imbalance that happens outside the mediation meetings.

Myth #2: There is prejudice for women in mediation.
Fact: Both spouses do not have any more disadvantages in mediation than in a divorce court. Moreover, a woman has the same right as with a man, to refuse an agreement that seems unreasonable to her or even stop the mediation.

Myth #3: Mediation is more bothersome than asking a lawyer to take care of the divorce.
Fact: Both litigation and mediation will require the divorcing spouses to do some amount of information gathering and decision making work but mediation provides a simpler method to the process. This approach is cheaper and less cumbersome than going to the court.

Myth #4: Mediation is for pushovers.
Fact: In mediation, the divorcing spouses negotiate for themselves and voice out what they want, instead of their lawyers. This develops their self-confidence and communication skills. They also learn to come out with decisions they are really satisfied with.

Myth #5: Mediation takes more time than divorce.
Fact: Most of the time, mediation always takes less time than taking the divorce in court. But if the spouses already prepared everything, litigation will almost always take as long or longer than mediation, even if there is an out-of-court settlement made by the lawyers.

Myth #6: There’s no place for lawyers in mediation.
Fact: Pro-mediation lawyers can help spouses by explaining their rights and options provided under the law, by guiding them in the negotiations, by constructing settlement ideas that satisfies both parties, and by putting together the paperwork once the agreement has been finalized.

Myth #7: The mediator determines what’s acceptable for the divorcing spouses.
Fact: A mediator does not have the authority to decide for the divorcing spouses. His responsibility is to facilitate the negotiation between the spouses and reach a fair agreement acceptable to both parties involved.

Marriage between two individuals in love is a beautiful thing.  However, the hard facts relating to divorce statistics in our country have made it almost unwise to marry someone without first drawing up some sort of legal agreement about what would happen if the marriage doesn’t work out as well as both parties hope.

The biggest issue most people run into, however, when drawing up a prenuptial agreement is the fact that it just seems so unromantic.  Let’s face it—the whole process of engagement and marriage is not one that makes it easy to bring up issues regarding what would happen if it all falls apart.  The beginning of your lives together doesn’t quite seem like the right time to talk about the possibility of divorce, and almost seems to be setting the marriage up for failure from the onset.

However, without the adequate preparation that a prenuptial agreement provides, one or both parties involved in a marriage might be setting themselves up for financial ruin if the marriage doesn’t work out.  And anyone who is honest with themselves in this day and age has to admit that there is always the likelihood that the marriage might not work, despite the best of intentions on both sides.

This is why a mediated prenuptial agreement is a good idea, and can lessen the negative feelings that might arise when a lawyer who normally handles divorces is asked to draw up a prenuptial agreement.  A mediated situation by a neutral third party is easier and involves less stress, which can be crucial to keeping the relationship healthy and without negative feelings before the marriage even begins.  Additionally, the knowledge that both individuals are legally bound to play fair in case a divorce does happen will only serve to strengthen the marriage and provide a situation in which both parties trust each other more.

Divorce is never an easy process for anyone—this is especially true for the children involved.  The worst part of it for most children is feeling the anger and resentment that is always present in the middle of the conflict.  Regardless of how well parents attempt to take their fight somewhere the children won’t hear, children are always aware of what is happening.

When divorce lawyers become involved, the situation usually gets worse, especially if there is a custody battle.  Even the best of people show their worst sides in the middle of such a battle, and divorce lawyers only manage to make things worse by encouraging each parent to fight harder, be greedier, and play dirty (if necessary) to get what they want out of the divorce.

In a mediated divorce, however, things are handled differently.  The mediation lawyers involved are trained in conflict resolution, and never suggest tactics to increase the conflict.  This type of tactic would, in fact, be against the very nature of mediation, which is a legal process that encourages communication and dialogue that is aimed to settle disputes in a reasonable, non-vindictive manner.

Since the anger and resentment between the two parties in conflict are kept to a minimum, the children almost always fare better in a mediated divorce than they do in a litigated one.  Mediation lawyers are trained to resolve conflict rather than stir it up, which means that the parents involved in a divorce are more likely to reach a calm, rational decision regarding issues such as child custody, and each party is given the opportunity to review with the mediation attorneys what would be best for everyone involved.

Mediation attorneys are familiar with all state laws regarding child custody and divorce, and will be able to communicate these laws effectively to the contesting parties in order to reach a decision that would be best for everyone involved—most especially the children.  In addition, since the process of mediation is one in which both parties are given the chance to be heard in a fair manner by a neutral third party, one side is not given unfair advantage because they had the resources to “lawyer up.”  This keeps anger and resentment to an absolute minimum and resolves the conflict quickly.