“There are so many divorce options: litigation, mediation, collaborative law. How do I decide which is best for me?
It does not matter whether your case is complex or simple; if you have many assets or few; or whether the dispute is over money or kids. The two most important factors are preferences (what you want) and power (what you can use to get what you want.)
Preferences
You must first know what you want before you can choose a process. Is it the most money you can get? Is it fairness? Is it the outcome that most closely resembles what a judge would do? Is it the most amiable relationship for the sake of the children? It is a quick settlement so you can move on?
It is important to be clear about your preferences, and also try to ascertain what your ex’s preferences might be. That will help you determine the process most likely to get what you want.
Power
Power comes from many places: personalities (is either of you the kind of person who has to have their way?); emotions (is either of you experiencing a lot of anger or guilt?); negotiation approach (do you both approach negotiation the same way, or is one of you a hardball negotiator and the other an accomodater?) and the history of the relationship (was there emotional or physical abuse? Does one of you have a mental illness, or a drug or alcohol dependency?).
Perhaps the most important source of power comes from the respective strengths of your alternatives to a negotiated agreement. For instance, assume that you have a stronger “case” than your ex and you are able and willing to litigate, if you must. You will have strong negotiation power in litigation and in mediation, but less power in collaborative law, where you cannot use the legitimate threat of litigation as a source of power, and where you have to hire a new lawyer if the process fails to reach a settlement.
Likewise, if you have a stronger case but cannot afford to litigate, and your ex has a weaker case but has more money, again, you may not have equal negotiation power in collaborative law. This is because your ex could play “hard-ball” and hold out for what he or she wants, knowing that starting over with new lawyers is more affordable for him or her than it is for you.
Maybe “doing nothing” is more acceptable to one of you. Often, the person for whom the status quo is more tolerable will have more negotiation power then the person who needs quick decisions and actions.
You should therefore be thoughtful about the preferences and sources of negotiation power that each of you have, before selecting a dispute resolution process.
At Riverdale Mediation, we analyze both parties’ preferences and sources of power before mediation begins, so that we can structure the best possible process for both of you. For instance, if you feel that you cannot negotiate in the same room as your ex, we may recommend that your lawyer attend the mediation with you, or that the mediation take place with you and your ex in separate rooms. If you feel that your ex will never negotiate in good faith, you may need to start litigation before you start mediation.
Collaborative law can be a good process for people who need the hands-on assistance of lawyers and other professionals to work out an agreement. It can also be very expensive and time consuming. Many separating couples choose to try mediation first: it is usually much less costly, it operates on the same principles — a fair, safe, balanced and informed “problem-solving” negotiation — and it allows them to use the legitimate power that comes from the threat of litigation, if that is what they need, to reach a fair settlement.
Mediation or Collaborative Law?
“There are so many divorce options: litigation, mediation, collaborative law. How do I decide which is best for me?
It does not matter whether your case is complex or simple; if you have many assets or few; or whether the dispute is over money or kids. The two most important factors are preferences (what you want) and power (what you can use to get what you want.)
Preferences
You must first know what you want before you can choose a process. Is it the most money you can get? Is it fairness? Is it the outcome that most closely resembles what a judge would do? Is it the most amiable relationship for the sake of the children? It is a quick settlement so you can move on?
It is important to be clear about your preferences, and also try to ascertain what your ex’s preferences might be. That will help you determine the process most likely to get what you want.
Power
Power comes from many places: personalities (is either of you the kind of person who has to have their way?); emotions (is either of you experiencing a lot of anger or guilt?); negotiation approach (do you both approach negotiation the same way, or is one of you a hardball negotiator and the other an accomodater?) and the history of the relationship (was there emotional or physical abuse? Does one of you have a mental illness, or a drug or alcohol dependency?).
Perhaps the most important source of power comes from the respective strengths of your alternatives to a negotiated agreement. For instance, assume that you have a stronger “case” than your ex and you are able and willing to litigate, if you must. You will have strong negotiation power in litigation and in mediation, but less power in collaborative law, where you cannot use the legitimate threat of litigation as a source of power, and where you have to hire a new lawyer if the process fails to reach a settlement.
Likewise, if you have a stronger case but cannot afford to litigate, and your ex has a weaker case but has more money, again, you may not have equal negotiation power in collaborative law. This is because your ex could play “hard-ball” and hold out for what he or she wants, knowing that starting over with new lawyers is more affordable for him or her than it is for you.
Maybe “doing nothing” is more acceptable to one of you. Often, the person for whom the status quo is more tolerable will have more negotiation power then the person who needs quick decisions and actions.
You should therefore be thoughtful about the preferences and sources of negotiation power that each of you have, before selecting a dispute resolution process.
At Riverdale Mediation, we analyze both parties’ preferences and sources of power before mediation begins, so that we can structure the best possible process for both of you. For instance, if you feel that you cannot negotiate in the same room as your ex, we may recommend that your lawyer attend the mediation with you, or that the mediation take place with you and your ex in separate rooms. If you feel that your ex will never negotiate in good faith, you may need to start litigation before you start mediation.
Collaborative law can be a good process for people who need the hands-on assistance of lawyers and other professionals to work out an agreement. It can also be very expensive and time consuming. Many separating couples choose to try mediation first: it is usually much less costly, it operates on the same principles — a fair, safe, balanced and informed “problem-solving” negotiation — and it allows them to use the legitimate power that comes from the threat of litigation, if that is what they need, to reach a fair settlement.