Differences Between Collaborative Divorce vs. Mediation

Litigation isn’t always necessary to end your marriage. There are several alternative dispute resolution methods that can be used for divorce, including collaborative divorce and mediation. Both of these processes can allow you to part ways with your spouse outside the courtroom and remain in control of the outcome of your case. Although they each promote cooperation and share other attributes, the processes for collaborative divorce vs. mediation are structured very differently. It’s important to understand the pros and cons of each method in order to make an informed decision about how best to proceed in your case.

What is Mediation?

Mediation is an alternative to litigation that can help couples part ways amicably, efficiently, and cost-effectively. Sessions take place in a neutral environment and are guided by a third-party called a mediator. The mediator does not take sides or make decisions for the parties as a judge would. They also do not offer legal advice. Rather, the role of the mediator is to assist the parties with facilitating healthy communication and reaching a settlement. While mediation sessions can be scheduled at the convenience of the parties, the number of sessions needed will depend upon the ability of the spouses to cooperate.

Mediation is flexible and allows spouses to identify creative solutions that might not be available in the courtroom. Although the process is informal and there is no discovery process, spouses must still fully disclose their financial situations. Notably, with mediation, the parties retain control over decision-making, rather than allowing a judge who does not know them or their family to decide. The process is often much less stressful than litigation and can help keep legal fees low, while bypassing the delays that can come with adhering to the court’s calendar.

What is the Collaborative Divorce Process?

Collaborative divorce is similar to the mediation process in many of the benefits it offers, such as amicability, cost-effectiveness, and efficiency. However, the processes for collaborative divorce vs. mediation are very different. The collaborative process involves a team of professionals who are assembled based on the unique issues that must be resolved in the case. Depending on the matters that must be resolved, a collaborative team may include:

• Financial neutrals: A financial neutral, such as an accountant or financial planner, can help the spouses gather financial information so they can reach a fair property settlement.
• Mental health professionals: Mental health professionals can help spouses communicate, manage their intense emotions, and stay focused on the future rather than the past.
• Divorce coaches: Divorce coaches can help de-escalate conflict as well as teach spouses how to regulate their emotions and communicate their needs clearly.
• Appraisers: When there are complex or high-value assets at issue, an appraiser can help determine fair market value to ensure an equitable distribution.
• Child custody specialists: A child custody specialist can help parents create a customized parenting plan and educate parents on minimizing the emotional impact of divorce on their children.

Importantly, these professionals do not make decisions for the spouses. But they can help ensure the parties are fully informed as they negotiate a settlement.

When spouses decide to use the collaborative process, it is a commitment. The parties are required to sign an agreement that they will not resort to litigation at any time during the collaborative process. If either party wishes to bring the case into the courtroom, the collaborative attorneys must withdraw from the case and new attorneys must be retained for litigation.

Which is Better: Collaborative Divorce vs. Mediation?

When considering whether collaborative divorce vs. mediation is better, it’s crucial to think about your goals for divorce and the specific circumstances of your case. Neither method is necessarily “better” than the other, but it will depend on the dynamics of your situation and the issues that must be resolved.

Mediation can be beneficial in most cases, but it usually works best when asset division is straightforward and child custody is uncontested. In contrast, the collaborative process can be particularly effective when there are complex asset or tax scenarios, spouses need a considerable amount of professional support, and there is a high level of conflict but both spouses wish to settle.

Mediation can be faster, more cost-effective, and more streamlined than collaborative divorce. However, if mediation fails, the case will end up in court. With the collaborative process, since spouses are required to sign a binding agreement that they will not resort to litigation, it is much less likely that the case will proceed to litigation. It’s best to work with a skilled divorce and family law attorney who can evaluate your case and help you choose the process that will work best for you.