What is your ultimate goal?
Determine what is most important to you. For example, if you believe that working together with your spouse to co-parent your children is a top priority, then you might want to consider collaborative law or mediation. Collaborative divorce and mediation focus on interest based negotiation instead of simple application of the law. Parties can therefore craft settlements in their best interest while focusing on solutions for the entire family.
Is cost a consideration?
Collaborative law and Mediation are more often less expensive than the traditional litigated process. Mediation for example allows the parties to split the cost of mediation rather than paying two attorneys to gather income, asset, and debt information. Collaborative law uses a cost-effective team model which brings in other experienced professionals to assist in the development of a comprehensive settlement.
Do you have children?
Many psychologists suggest that children of divorce suffer less negative effects when their parents choose to mediate, collaborate, and co-parent after the divorce is finalized. Certainly, parents who choose to litigate can also effectively co-parent their children following the divorce. Mediation and collaboration focus on parenting and use language skills to remind parties that they will continue to function as "mom and dad" when the divorce is over. Divorce changes the spousal relationship, not the parent-child relationship. Collaboration and Mediation assist parties in developing co-parenting skills which will last after the Divorce Judgment is entered.
Do you want a relationship with your spouse after the divorce?
The litigated model is set up to pit parties against each other. Mediation and collaboration require parties to work together. How you divorce may impact your relationship after the Judgment of Divorce is entered.
Is privacy a concern?
One of the greatest benefits of mediation and collaboration is that it provides people with a private forum to work out their differences.
Do you want to control your future?
While very few cases go to trial, the litigated model works towards an eventual trial date where a Judge will determine how your assets are divided, what your parenting time will be, and how and if support will be paid. People who choose collaborative law and mediation want control of these very important decisions.
Is there a history of abuse?
Most mediators and collaborators do not work with parties when there is a history of abuse. Domestic violence cases are more appropriately dealt with in the traditional divorce process where there is immediate Court protection.
Will your spouse provide pertinent information?
Collaborative Law and Mediation require a degree of trust between spouses. Unlike the traditional litigated process which has discovery, collaborators and mediators require parties to be forthcoming with income, debt, and asset information. Trust is less of a concern if both parties are W-2 employees and have shared asset and debt information throughout the marriage.
Is there a power imbalance?
If there is a severe power imbalance, mediation is likely not appropriate because one party will assert his/her will over the other party. A skilled mediator can attempt to balance the scales depending on the degree of imbalance. Collaborative law and litigation are more appropriate when there is a power imbalance because these options provide an advocate to work with the parties towards resolution.
What are you teaching your children?
Can you work together as parents? Children want their parents to work together and develop harmonious solutions.