By choosing to go through the collaborative divorce process instead of the traditional trial process, you can potentially avoid messy custody battles, additional court expenses, and embarrassment that comes from a public trial.
One of the biggest advantages, especially when there are children involved, is that you want people to be able to walk out of their divorce case and still feel like they are raising a child together.
When you go to court and you’re up on the stand being cross-examined, the other attorney is trying to portray you as one of the worst parents that has ever walked the face of the earth. How do you continue a relationship with your ex-spouse and raise your child in a positive way? You’re going to remember what the attorney suggested and attribute that to something that your ex-spouse said to the attorney to benefit his or her case.
In a collaborative case, you don’t have that. You’re sitting down in a room talking to both parties about what’s best for your child. You come up with an agreement that works best based on your respective schedules and any other issues there may be. The parties don’t have to necessarily want to be married or like each other, but they must have a common goal in terms of how they’re going to raise their child. By going through a collaborative process, you avoid all the acrimony that’s associated with going to court.
There are situations that can be embarrassing to the parties that they may not want to come out to the public. However, litigation is a very public process. You’re in a courtroom. There are lawyers walking in and out and other parties listening to the evidence when you’re in the middle of a hearing.
There are those cases where you want to keep some facts private. For example, a CEO of a company is going through a divorce and a custody case. Maybe they have a history of alcoholism that isn’t very well known to the public. They’re not going to want that brought up in front any strangers, the judge, or potential witnesses. Through a collaborative process, you have the same ability to reach agreements without going through that public process. You can come to agreements privately that won’t be shared in court. For that CEO, an agreement could be getting some help for their drinking such as, going to AA meetings for the next 90 days or seeing a therapist. It’s a very private process that allows you to work through those types of issues and avoid embarrassment from public knowledge over those issues.
Initially the retainers for each process are very similar. Though, if you have a case that is successfully mediated, it will be less expensive because you don’t have the costs associated with the preparation and process of a trial. With mediation, the value of the settlement is much less relative than the amount of money that you’re going to spend if you continue the litigation process and keep fighting.
There are some cases where that cost is significant. If you have cases with substantial separate property issues, a party may spend over $50,000 just working on tracing their separate property. That could potentially be avoided if you go to mediation and can agree on a settlement you don’t need of a forensic accountant. The level of detail is also not as important. Instead of somebody analyzing 20 years of bank statements, you can walk through a process with both parties to agree on certain assumptions that will allow you to reach a conclusion.
It does save a lot of money by going through that process, but it’s hard to quantify the actual dollars. It’s not just the money you’re going to save on a divorce trial, it’s also the money you’re going to save in potential future litigation. I think the statistics are very similar no matter what state you’re in: cases that go to trial (especially child custody cases where one side wins custody) will end up back in court over 80% of the time.
By settling at mediation or settling through a collaborative process, both parties walk out feeling like that they have an agreement they can live with. And they’re not going to spend attorney fees in the future to try and recover something they lost in litigation.