Divorce mediation and collaborative divorce are constructive, forward-looking approaches to solving problems and making the plan that couples will use to manage their affairs after leaving the marriage.

Rev. 02/08/08

Member, ACR (Academy of Family Mediators)

Member & Co-Founder, Collaborative Divorce Lawyers Association

Member, Conn. Council for Divorce Mediation (CCDM)

Suggested Links

A Connecticut Divorce Primer by Sue Smith.

Divorce and Mediation Resources by Sue Smith

Recommended Books
(Links to Amazon.com)

     Susan K. Smith, Attorney    
Hartford and Avon, CT

Background. In litigation, it is the ethical duty of lawyers to zealously take the strongest positions possible for their clients. In the "adversary system" model, each side argues as vigorously as possible for a position and it is up to the decision-maker to make a fair decision based upon the evidence and arguments advanced by the parties. In practice, most legal disputes (whether civil or matrimonial) are eventually negotiated to a resolution after they have been litigated in adversarial fashion. In divorce mediation or collaborative divorce, the focus is on negotiating to find the middle ground earlier in the process to save wear and tear on the parties' emotions and finances.

The Mediation Process. In mediation, the parties work with one neutral mediator to come to an agreement with respect to property division, custody and visitation and other issues. (Collaboration differs in that each party is represented by a separate and specially-trained collaborative attorney.) A mediator cannot provide individualized legal advice, but can provide neutral education about legal principals and information about guidelines and criteria that are used to analyze common issues. The mediator helps the parties develop an agenda of issues that need to be addressed. If children are involved, the mediator will assist the parties in calculating the presumptive support amount under the Child Support Guidelines. A mediator can assist the couple with developing a variety of options so that the spouses can fashion an agreement that will work for them.

• An attorney-mediator can assist the parties in drafting the complaint to start the divorce process, obtaining Marshal's service and getting the complaint docketed in the court.
• If appropriate, a mediator can assist the parties in obtaining evaluations of marital assets, such as homes or pensions.
• If appropriate, the mediator may refer the parties to other professionals for counseling on separation and child visitation issues, asset evaluation or tax advice.
• If necessary, a mediator can refer the spouses to "consulting counsel," separate attorneys who will review the proposed agreement on behalf of the individual spouse.

Collaborative Divorce and Mediation Compared. Many of the mediation principals and processes discussed above are incorporated into the collaborative divorce process. The principal differences are that

• in collaboration is that each spouse is represented by an individual attorney from the roster of those attorneys who are special trained in the collaborative process; and
• parties can obtain individualized legal advice from their respective attorneys.

Collaborative divorce uses informal methods such as voluntary production of financial documents, four-way conferences, negotiation, and where needed, outside professionals such as accountants, financial planners and family counselors. Because collaboration provides the added support of individual lawyers who can advise and protect his or her client, some spouses might feel more comfortable and secure with the collaboration alternative. Attorney Smith is a founding member of the Collaborative Divorce Lawyers Association, an association of attorneys in the north central Connecticut who have received special training, meet high standards and subscribe to the same protocols.

Mediation and collaboration are becoming a more widely used alternatives to litigated, adversarial divorces. In most cases, the cost (financial and emotional) of a mediated or collaborated divorce is substantially less than that of a traditionally litigated divorce. The benefits are:

• There are fewer disputes in the future because the parties have learned the process of reaching their own resolutions and communicating within the context of a new relationship. Statistics show that fewer than 10% of mediated divorces end up in court on post-divorce disputes or contempt motions for failure to comply with the terms of the agreement.
• It is a forward-looking and less destructive than an adversarial process that focuses on past problems; the parties leave with respect for themselves and each other in tact.
• It takes less time. The average mediation can be accomplished within 3 to 4 months.
• It costs less money.
• It is better for children than a contentious adversarial divorce.
• It provides a foundation for better long-term parenting because the parties can learn the process of working out solutions to common parenting problems.

Trial Separations. Mediation and collaborations are also options for couples who are unsure as to whether they wish to divorce and who may benefit from a mediated separation agreement. The mediator or collaborative attorneys can assist the couple in reaching an agreement concerning interim living arrangements, custody, visitation, and support. If the couple decides that they wish to follow through with divorce, the work done in mediating the separation agreement can be "rolled into" the divorce agreement.

Post-divorce Disputes.  Mediators and collaborative lawyers can also facilitate agreements between parties who have been divorced and for whom disputes have arisen post-judgment.