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Considering Divorce Options: Litigation, Mediation or Collaboration?

Posted by Richard DeMichele | May 12, 2014 | 0 Comments

Considering how to get divorced? Litigation, Mediation, or Collaboration

Everyone knows at least one person who has gone through a miserable and contentious divorce.  Admittedly, divorce can be messy, but it does not always have to be that way. Amicable resolutions are possible, however, they rarely get any publicity. Who wants to spend their time reading about a friendly divorce? It almost sounds like an oxymoron, but it is possible to meet your divorce goals and find amicable solutions  when you engage the right professionals and the right process.  Two alternatives to divorce litigation are mediation and collaborative divorce. Though similar, collaborative divorce and divorce mediation have their differences.  With mediation, the parties meet with a single mediator who does not provide any legal advice but, rather, facilitates the parties finding their own solutions on the way to obtaining a divorce agreement. This can sometimes prove problematic if the two parties do not have equal bargaining power and a solid understanding of what the divorce law in their state provides. With collaborative divorce, both parties have attorneys to advise and represent them throughout the process. The attorneys often agree on joint valuation experts. These experts can include real estate appraisers, forensic accountants, art appraisers, and even marine surveyors. Obviously, the type of valuation expert needed will vary depending upon the facts of each specific case. A significant difference between mediation and collaborative divorce is the absence of legal advice until the end of the process. People who choose to mediate their divorce are often advised to have the agreement independently reviewed by a lawyer. Parties who have not previously been educated as to what the law will provide often times take what they think is an agreement to a lawyer to affirm their agreement. The attorneys' job is to protect the interests of each respective party whom they represent. A problem arises when one of the attorneys realizes the mediated agreement is not in his or her client's best interests and advises the client not to sign the agreement or the attorney attempts to renegotiate the “deal.” With collaborative divorce, both sides have attorneys giving them a legal guidance from the outset of the process. This is not to say that the attorneys are adversarial. To the contrary, both parties work together with the help of their attorneys to arrive at a fair and equitable solution.  If the parties cannot reach an agreement to the collaborative process, the attorneys who represented the parties in the collaborative process are prohibited from representing their client in the litigated divorce. This important detail helps incentivize the lawyers taking part in the collaborative process to find fair and equitable solutions which the parties can rally around.

In collaborative divorce, both parties will explore issues and establish which priorities the divorcing couple will need address.  This aspect of the process is very different from mediation where, by contrast, an attorney will guide divorcing couples to find their own solution. Litigation cannot be avoided in every divorce. Collaborative divorce or mediation are alternative frameworks designed to achieve and amicable solution. Both processes can help the parties save time and money with efficient and expert guidance. Successful mediation or collaborative divorce participants report that they found the process to be less emotionally trying than litigation. What's right for you is highly circumstantial. For anyone considering divorce, knowing the options that are available and what they is a intelligent first step. If you or a loved one have questions regarding mediation, collaborative divorce, or the New Jersey divorce process generally, please contact us or call us at (856)546-1350 to schedule a confidential consultation with our experienced New Jersey alimony attorneys.  

About the Author

Richard DeMichele

Richard A. DeMichele, Jr. is a seasoned litigator, devoting a substantial part of his practice to family law and personal injury matters.

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