Seattle Collaborative Divorce vs. Mediation

The decision to end your marriage can be highly emotional and personal. Yet, when it comes to ending a marriage, divorce is not just a personal matter, but also a legal one, with consequences that can affect various aspects of your life. Divorce can affect your finances, property, debts, retirement, child custody, and more. To file for divorce in Seattle, Washington, you’ll need to make important decisions. These decisions include:

• Differentiating shared (community) property and debts from separate property and debts. (Community property is acquired during the marriage, while separate property refers to anything you owned before the marriage or after separation, with some exceptions)
• Dividing shared (community) property.
• Dividing shared (community) debts.
• If you own a house, will one spouse keep the house, or will it be sold, and proceeds split between both spouses?
• Making decisions about who will keep a pension or retirement plan or deciding how these plans will be divided to protect both parties from tax liabilities.
• Deciding whether alimony will be paid, how long it will be paid, and how much will be paid.
• Creating a parenting plan outlining where children will live, how parenting time will be split, how major decisions will be made for the children, and whether additional child support will be required to pay for a child’s college or other activities.

These are just some of the basic decisions that may need to be made to reach a divorce settlement. If you own a business, have high net-worth, are in the military, or have other unique circumstances, you may need to make decisions above and beyond those outlined above.

The decision to get divorced in Seattle, Washington is just the first of many decisions you and your former partner will need to make.

Once you and your partner decide you want to get divorced, the next decision you’ll need to make is how you plan to go about getting divorced. There are generally three avenues you can take that can result in a successful divorce settlement.

• Contested Divorce (Involves Litigation)
• Collaborative Divorce (Doesn’t Involve Litigation)
• Mediation (Doesn’t Involve Litigation)

Because mediation and collaborative divorce both don’t involve litigation, these similarities can result in some confusion about the crucial differences between them. Let’s explore the differences between each of these avenues in more depth:

Contested Divorce

When people think of divorce, they often think about contested divorce. Contested divorce involves conflict and the courtroom. When we see divorce depicted in the media, we most often see a depiction of a contested divorce (after all, any good story needs conflict).

With a contested divorce, any aspect of the divorce settlement over which you or your spouse cannot reach an agreement can be taken to court and presented formally before a judge, who then decides. You and your spouse will each have your own divorce lawyer present at trial.

During the trial, your lawyer will argue your case, and your former spouse’s lawyer will argue his or her case. Then, the judge will make a final decision based on his or her interpretation of the law.

With a contested divorce, any decision you and your spouse cannot agree upon is left in the hands of a judge. As you can imagine, this has its risks, especially when it comes to sensitive and highly personal matters like child custody and finalizing a parenting plan.

Most people don’t want a judge who doesn’t know them or their children making decisions about their parenting or where their children will live. In many cases, couples try to resolve these differences outside of court. In fact, litigating child custody and your parenting plan should be seen as a “last resort” because of the risk that a judge will decide the case in a way that neither party really wants.

According to researchers writing in the journal Psychological Science in the Public Interest, “Theoretically, the law guides and controls child custody evaluations, but the prevailing custody standard (the “best interests of the child” test) is a vague rule that directs judges to make decisions unique to individual cases according to what will be in the children’s future (and undefined) best interests. Furthermore, state statues typically only offer vague guidelines as to how judges (and evaluators) are to assess parents and the merits of their cases, and how they should decide what custody arrangements will be in a child’s best interests.”

What does this mean, in plain English? It means that the law isn’t always clear about how judges should rule on any given parenting plan and suggests that a judge’s decision-making may be based on the judge’s own values. It also means that it can be difficult to predict how a judge might rule on your case.

According to the researchers, when couples ask a judge to make child custody decisions and interpret vague “best interests of the child” standards, they put “judges in the position of trying to perform an impossible task,” which is to make decisions that only parents are best making. (After all, you know your children and family best!)

Furthermore, research has shown that children fare better psychologically when their parents are able to reduce conflict and find healthy co-parenting solutions together. When a judge makes these decisions, conflict is likely to remain high both during, and after the divorce, and the children are more likely to suffer psychological difficulties stemming from the divorce (after all, the parenting plan will be followed by both parents without the daily oversight of the court). The researchers write, “children fare better in separation and divorce if parental conflict is minimal or at least contained and if children maintain a good relationship with at least one, and preferably both, of their parents.”

If there’s only one area of the divorce where agreement and settlement is not only preferred, but encouraged, it’s reaching an out-of-court settlement regarding your parenting plan. The researchers add: “Private settlement of custody disputes can reduce conflict; it can encourage more cooperative, ongoing relationship between co parents; and it can facilitate positive relationships between children and both of their parents.”

The truth is this: if you can negotiate child custody outside of court, you can likely negotiate the other aspects of your divorce settlement. According to Psychological Science in the Public Interest, less than 5% of divorce cases go to trial, and fewer than 2% ultimately get decided by a judge. The courtroom drama divorce is really the stuff of Hollywood. Most divorces are settled outside of court.

If all of this isn’t enough reason to settle your divorce rather than litigate, it also helps to remember that litigation can be much more costly and take much longer than collaborative divorce or mediation, and when couples take their case to court, they often wind up settling outside of court anyway due to court-ordered mediation (meaning that in the majority of cases parties are required to mediate before they are permitted to go to trial ). For these important reasons, more and more couples are choosing to reach a divorce agreement through collaborative divorce or mediation.

Collaborative Divorce in Seattle, Washington

In some ways, the earliest stage of a collaborative divorce looks like a contested divorce. Both you and your spouse each hire your own lawyer. But this is where the similarities diverge. What differentiates collaborative divorce in Seattle, Washington from other avenues is that with collaborative divorce, you and your former spouse agree to settle your differences outside of court, with the assistance of your lawyers.

According to Washington law (7.77.040), the collaborative divorce process begins when both you and your former spouse “sign a collaborative law participation agreement.” Both parties agree to settle the divorce without going to trial.

With collaborative law, all parties work together as a team to negotiate a fair divorce settlement. The collaborative divorce team often includes you, your former spouse, your lawyer, and your former spouse’s lawyer, though the collaborative divorce team can include other specialists and neutral parties. These individuals might include therapists, parenting coaches, accountants, and more.

While it might sound overwhelming to consider hiring not only two lawyers, but also a therapist or parenting coach, especially if you and your former spouse agree on most aspects of your settlement, many families see hiring these additional neutral parties as an investment in the future. The parenting plan and child custody agreement you eventually decide upon will affect you and your children for years to come. It can be very difficult to change a parenting plan once it has been approved by the judge. It is important to get your parenting plan right.

Having the additional input of therapists and parenting coaches can help you and your former spouse create a parenting plan that is truly right for your family, while also anticipating potential changes as your children grow, and as your family changes. Therapists and parenting coaches can also help you address potential concerns that you may not have thought about and assist you with finding solutions that work for your family.

The collaborative law team doesn’t meet in court. Instead, everyone meets together outside of court as a team to negotiate aspects of the divorce agreement that remain in dispute. In some cases, both parties agree about most or all aspects of the divorce settlement, and the collaborative law process can proceed swiftly. In other cases, both parties disagree deeply about some aspects of the divorce settlement, and the process may involve ongoing negotiation or the hiring of additional neutral experts to assist the process (for example, if both parties cannot agree about the financial picture, a certified divorce financial analyst might be hired, or if both parties cannot agree about how a business should be divided or valued, a business valuation expert may be needed).

Even if you and your spouse agree about everything, you’ll both still need to each hire your own lawyer if you choose the collaborative divorce process. Why? For one, a lawyer cannot represent two parties in the same matter, and secondly, a lawyer can help you understand your legal rights. Ultimately, this is not to create conflict, but to help you understand your options under the law, and to make sure you aren’t relinquishing certain important rights.  

There are several benefits to the collaborative divorce process. One of the benefits is privacy. Everything you say or reveal in court will end up on the public record. With collaborative divorce, you can hash out these details in private. Also, the collaborative divorce process can often move more swiftly than a contested divorce because you and your spouse can discuss points of disagreement in real time without having to go through the time-consuming formalities of litigation (typically in litigation all settlement discussions go through the attorneys). Lastly, finalizing the paperwork outside of court reduces the stress common in divorce because you can move at your own pace and don’t need to worry about the filing deadlines and trial preparation required in litigation.

Yet, when it comes to reaching a divorce settlement outside of court, collaborative divorce is often confused with mediation. What is mediation, what are its limitations, and why is collaborative divorce often a better option? Let’s look at mediation next.

Divorce Mediation in Seattle, Washington

The main difference between collaborative divorce and mediation is that with mediation, the mediator works for both parties, serving as a neutral referee to help them negotiate a settlement in the face of conflict. Mediators can be family therapists, counselors, or social workers. Sometimes lawyers will work as mediators as well. Lawyers can work as mediators, but whether they are permitted to write divorce documents, parenting plans, and orders of child support remains unclear.

According to WSBA Advisory Opinion 2223, an attorney who is hired as mediator could be seen as violating the rules of professional conduct when drafting legal documents for clients, including property settlement agreements, orders of child support, and parenting plans. Lawyers have asked for clarification on WSBA Advisory Opinion 2223, including Caitlin Park Shin, in “Drafting Agreements as an Attorney-Mediator: Revisiting Washington State Bar Association Advisory Opinion 2223.”

About WSBA Advisory Opinion 2223, Shin writes: “a lawyer acting as a neutral mediator preparing ‘complex and customized provisions using original language and choices’ in drafting a document for unrepresented parties is (1) practicing law, (2) representing parties who may have interests directly in conflict; and (3) violating RPC 1.7, which governs conflict of interest with regards to current clients.” Because some attorney-mediators do draft property settlement agreements, orders of child support, and parenting plans, WSBA Advisory Opinion 2223 has created some debate among mediators and lawyers about where the ethical line might be crossed.

Some lawyers argue that when divorcing parties seek out a mediator and reach a divorce agreement through mediation, both parties’ interests are not opposed, and therefore there is no conflict of interest in drafting these documents. Others say that it is in the participant’s best interests that the agreements reached during mediation be written down in the appropriate legal document to avoid later confusion, which each party can then take to an independent attorney for review before signing.

Regardless, lawyers who do act as mediators may not be able to help you with certain divorce documents, and some may choose not to help with these documents at all and outsource the drafting process to another attorney. In other areas of law, a lawyer may, for example, represent two parties when their interests are “generally aligned,” but that is generally not the case in family law.

Furthermore, if you or your partner have a legal question during the mediation, a lawyer-mediator will not be able to offer legal advice because this could be seen as practicing law (especially in areas of the law where the law is vague and where both parties’ interests are in conflict, like in determining the amount and duration of spousal support). Ultimately a mediator can only serve as a neutral party helping you and your former spouse reach your own decisions about your divorce settlement.

Yet, one of the benefits of hiring a lawyer is the ability to ask for legal advice so you can best understand your legal rights and protect them. When divorcing couples choose the collaborative divorce process, they each hire their own lawyer and can therefore receive legal advice that helps them identify their best interests in the context of the law.

Understanding your rights clearly can help you better make more sound compromises and decisions. With collaborative divorce in Seattle, Washington, both lawyers work on drafting property settlement agreements, orders of child support, and parenting plans as a team.

The takeaway is this: using only a mediator to negotiate your divorce has some important limitations. The two big questions to ask yourself when thinking about hiring a mediator-attorney are (1) whether you need help writing your property settlement agreement, orders of child support, and a parenting plan, and (2) whether you believe you will need legal advice as you negotiate your divorce. If you have questions about the law, your legal rights, or believe you may need help with your property settlement agreement, orders of child support, and parenting plan, then you may want to consider the collaborative divorce process in Seattle, Washington.

Choosing Collaborative Divorce in Seattle, Washington

Every couple must ultimately decide how they’ll go about filing for divorce. Filing for divorce can be an overwhelming process. And the thought of you and your former spouse each having to hire your own lawyer can feel like overkill, especially if you and your spouse agree on most issues. But if you truly want to know your legal rights, truly want clarity on the law when it comes to negotiating a divorce settlement that’s fair for all parties, and truly want your divorce settlement, order of child support, and parenting plan written clearly with attention to both parties’ interests—collaborative divorce may be a sound investment.

Just consider the alternatives: costly litigation, time spent in limbo while you prepare for court and go to court, the risk that a judge still won’t give you the divorce settlement you want, and the risk that you may still need to hire additional experts if you try mediation or litigation alone, and both processes fail. Even couples who cannot seem to agree on anything may be able to reach a fair divorce settlement through the collaborative divorce process.

If you’re interested in learning more, Truce Law, PLLC has a team of collaborative divorce lawyers in Seattle, Washington who are here to help you begin the collaborative divorce process. Contact us today to schedule a meeting with a collaborative divorce attorney.

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