Frequently Asked Questions

1Do you have to file a motion for complaint with the family court system in order to get the divorce process started?
No, often this is a big mistake people make. One party will hire a litigation attorney, a motion is filed and the legal battle begins. For many couples it is much better to use mediation or collaborative negotiations and have a divorce settlement agreement drawn up at the end.
2Are there instances where it is better to hire a traditional divorce attorney instead of using a mediator or collaborative lawyer?
Yes, in cases where absconding with children are threatened, there is serious domestic violence or evidence of dissipation of assets, a traditional lawyer should be retained. It is even possible in such instances that law enforcement authorities will need to be contacted.
3Is mediation a form of marriage counseling?
No, marriage counseling is a type of therapy where the focus is to recognize and resolve conflicts and help improve the relationship. Mediation is a process where the effort is to come to a divorce agreement with the help of a neutral third party.
4Can I have a lawyer representing me during mediation?
No, three-way meetings (two spouses and mediator) are used in mediation with no lawyers present. However, a lawyer can be hired for consultation. If direct representation during negotiation is desired then collaborative law or litigation should be used.
5Are all mediators the same?
No, mediators often specialize in certain areas of dispute resolution. If you are seeking an end to your marriage you will want a mediator who is well-rounded in divorce issues and familiar with family law.
6When is an arbitrator used during a divorce proceeding?
Sometimes the spouses will come to agreement on almost everything but be hung up on one concern. The stumbling block may involve the selling of a business, responsibility of college tuition or any other countless issues resulting from the marriage. Often an arbitrator will be brought in to make a final decision on the one issue so that both parties can move on with their lives.
7Can I choose to use mediation or collaborative law to end my marriage even if my spouse is against the idea?
No as both spouses would have to agree on mediation or collaborative law and if not, the divorce would likely end up on litigation. Give your spouse The Courtless Divorce book and ask him or her to read it. Often people are against using mediation or collaborative law simply because they do not know the benefits.
8During negotiations can a consultant be requested to provide advice on an issue?
Yes, neutral professionals are sometimes used during the meetings; i.e. one neutral professional can be brought in to advise both parties. A child custody expert or certified public accountant would be good examples of consultants who could be brought in to provide expert advice.
9Can my collaborative lawyer represent me in court if the collaborative negotiations break down?
No, in the beginning a participation agreement will be signed disqualifying both attorneys from representing their clients in any future family related litigation. This is an incentive for the lawyers to work together and see the process to a fair and reasonable conclusion.
10Can mediation or collaborative law still work if one spouse domineers over the other?
Yes, this is called a “power imbalance” and both mediators and collaborative lawyers are trained to recognize this. If the imbalance is minimal a trained mediator will control the negotiation making it fair so that both spouses feel comfortable or not intimidated. If there is a strong imbalance then using a collaborative law approach might be better so that both parties have direct representation during the meetings.
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“I’d rather regret the things I’ve done than regret the things I haven’t done.”

— Lucille Ball
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