Connecticut Mediation and Collaboration  

       By Sue Smith
suesmith@smith-lawfirm.com

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.

Collaborative Divorce and Mediation Compared. Many of the mediation principals and protocols discussed above are incorporated into the collaborative divorce process. The principal difference is that in collaboration is that each spouse is represented by an individual attorney who is specially trained in the process.

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 individual advise his or her client, some spouses might feel more comfortable with the collaboration alternative. 

Mediation and collaboration are becoming 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 as to either process 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.

White Paper:
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To look forward and
 not back, to look out and not in, and
to lend a hand.
Edward Everett Hale
(1822-1909)