Answers To Commonly Asked Family Law Questions

Mediation, Cooperative and Collaborative Law: Which is Right for You?

In Pennsylvania there are multiple ways to dissolve a marriage today. No longer are all divorces long and drawn out legal battles that can cripple the soon to be ex-couple financially. Many couples contemplate between utilizing the collaborative family law approach, cooperative family law approach, or mediation to promptly resolve their divorce disputes. These options allow couples to decide how to best resolve any pending issues without litigating them and allowing the court to determine custody, equitable distribution, alimony and other ancillary issues. They also allow parties to focus on what is important to them as a divorcing couple and not focus on the factors and criteria to which our courts adhere.

What is Mediation?

Many couples now use mediators to help resolve their disputes and work out all agreements related to the divorce such as child custody, support, equitable distribution and alimony. This is all done without the court's oversight. Mediation allows a divorcing couple to use a neutral party to help bring them together in a controlled environment while negotiating the terms of their case.

Using one person to help reach an agreement is normally more cost effective than resolving the outstanding issues through two attorneys. Mediation also allows the parties to work through their issues and reach an agreement. Parties who make their own agreements rather than receive a court order dictating the terms of their divorce and custody issues tend to be happier and less likely to continue to fight over issues.

The mediator is present to help the couple reach an agreement and does not make any decisions for the couple. Further the mediator does not provide either party individual legal advice.

How Does Family Law Mediation Work?

Both parties negotiate directly with each other regarding the terms of their divorce when taking the mediation approach. The parties are advised to consult with individual legal counsel so that each is advised of their legal rights and responsibilities and to help determine whether the agreement that the parties are working toward is fair and reasonable for each individual.

Prior to attending mediation, each party will call the mediator and provide background information about the marriage and any pending divorce issues. Upon attending the first meeting, the mediator will explain what you can expect throughout the process and what to expect from the mediator.

Once an agreement is reached, the mediator, or the party's attorney, will draft a marital settlement agreement. Upon final execution, the marital settlement agreement will be attached to the final judgment.

What is Collaborative Family Law?

Collaborative family law, which is often referred to as collaborative law, enables divorcing couples to work together and discuss, negotiate, and agree to the terms of their marital dissolution without the court intervening or being involved.

Collaborative law is another cost effective and time saving approach that allows individuals to reach an agreement regarding the dissolution of their marriage that best suits their needs.

Before starting the collaborative law process, each spouse must sign a written pledge stating that they will not litigate any marital disputes in court and act in good faith while exchanging information during the negotiation process. Doing so forces the parties to keep working through the issues and to prevent the threat of litigation. If one party decides that he or she can no longer collaborate, the parties have to start over with new counsel and new experts as everything discussed and/or learned in the collaborative process is no longer available to the parties.

How Does the Collaborative Family Law Approach Work?

Prior to signing the initial agreement to commence the collaborative law process, each party must retain counsel trained in collaborative law (each party must be represented by counsel throughout all stages of the negotiations). The parties will sign an agreement that states the terms that will govern the process, such as the type of experts that will be hired, and how costs will be allocated.

Once the initial agreement is executed between the parties, each party will have time to meet with their attorney to discuss the terms of the marital settlement agreement. It is the attorney's duty to focus on how the party can resolve his/her issue in the most civil matter.

The attorneys will schedule times to meet in order for all parties to come together and negotiate any contested terms. This process can take as many meetings as needed to resolve the outstanding issues. Once the parties reach a final agreement, it will be drafted into a marital settlement agreement, executed, and included in the final judgment.

What is Cooperative Family Law?

Cooperative Family Law is a less strict version of the Collaborative Law process. There are no signed contracts between parties not to litigate or prohibitions against litigation, but the parties and their counsel work together to resolve the outstanding issues. If their negotiations fail, the parties and counsel can ask the court to determine as many issues as needed to finalize the parties' divorce.

Which One is Right for You?

Mediation and the collaborative law approach are great legal tools to utilize for a divorcing couple to reach an agreement regarding the dissolution of their marriage without the assistance of the court.

Under most circumstances, mediation is more affordable than cooperative or collaborative law. This is in large part due to the legal fees of attorneys during the collaborative law approach. As mentioned above, couples that utilize mediation can choose to obtain counsel, or go through the process unrepresented until a marital settlement agreement is reached.

However, some parties are not equipped to mediate the issues in their divorce because of a variety of factors. One party can be highly educated and/or business savvy and the other not. The parties may be so distrusting of one another that neither can make an informed decision. The parties can have a history of domestic violence. In these situations, the dependent spouse may not be able to assert him or herself or understand the nature and extent of the marital estate.

In these cases, despite the increase in cost, a dependent spouse is better off having an attorney present to either handle the negotiations with his or her assistance.