Differences Between Divorce Mediation and Collaborative Divorce

Many divorcing couples find that the potential benefits of collaborative divorce and divorce mediation make them much better options than battling out their issues in court.

By , Retired Judge

When your marriage is over, it can feel like there's a million decisions you have to make, not the least of which is what path to choose to formally end the relationship. Obviously, heading straight to court and filing for divorce is one. But having a court decide the issues in your divorce—known as a "litigated" divorce—can be contentious and expensive. Fortunately, you have other options: Participating in mediation or moving forward with a collaborative divorce could make the process less stressful and more cost effective.

Learn about divorce mediation and collaborative divorce, and weigh the pros and cons of each to see if one might be a good option for your situation.

What Is Divorce Mediation?

Mediation is a method of "alternative dispute resolution" (ADR). Its purpose is to help people settle legal issues without the need for lengthy and costly court battles. Mediation is one of the best options for couples seeking an amicable divorce.

In the course of divorce mediation, spouses meet with a trained mediator, usually in an informal setting. Typically, this would be the mediator's office, but there's a growing trend toward online mediation, which offers the parties flexibility in where and when they participate. Although private mediation is voluntary, be aware that if you decide to take your divorce directly to court, the judge might require you to participate in mediation.

Many divorce mediators are lawyers, but there's no requirement that a mediator have a law degree. Mediators can come from many different backgrounds. For example, some mediators are financial specialists, like CPA's. Others might be psychologists, social workers, or MFT's (marriage and family therapists). Mediators remain neutral during sessions and can't give legal advice—even when the mediator is a lawyer. Also, a mediator won't decide the issues in dispute. Instead, they use their knowledge and skill to suggest possible outcomes and help the couple reach a settlement agreement.

The cost of mediation varies based on where you live and the mediator's skills and qualifications. Mediation is almost always less expensive than litigating a divorce, though. Spouses usually split the mediator's fee as well as fees charged by any experts that may be needed, such as property appraisers, accountants, or psychologists (if child custody and visitation is an issue).

What to Expect in Divorce Mediation

There are no set rules as to how to conduct a mediation session. For example, some mediators favor a free-flowing discussion, while others prefer a more structured approach. Most mediators offer a free informational session that will give the spouses a chance to evaluate whether the mediator is a good fit for them. Finding a mediator with whom both spouses can work is crucial to conducting a successful mediation.

At or before the first mediation session the mediator will discuss procedures and what the parties should expect. The mediator will always strive to keep the spouses focused on the issues at hand, and keep the conversation civil.

What Is Collaborative Divorce?

Collaborative divorce (sometimes known as "collaborative law") has some similarities with both litigation and mediation. Like litigation, each spouse is represented by an attorney. But unlike divorce litigation, the spouses don't start their divorce by filing a divorce petition (complaint) with the court. Instead, the spouses work together with their attorneys to try to resolve their marital differences through negotiation.

Unlike mediation, there is no neutral third-party directing the negotiations in a collaborative divorce. Instead, collaborative divorce utilizes a team approach. Before a collaborative divorce begins, both the attorneys and spouses agree to work together to reach an agreement. Usually, everyone signs a "no court" agreement stating that if collaborative efforts fail, the attorneys will withdraw from the matter before the spouses head to court. Because this requires spouses to find new attorneys and start all over, it's a powerful incentive for everyone involved to reach an agreement.

The spouses and attorneys in a collaborative divorce might also decide to involve other professionals and experts, such as accountants and child custody specialists, to help them resolve the issues in their divorce. The use of any expert during the proceedings must be agreed upon by both spouses, and the expert must remain neutral.

Some states have statutes that govern collaborative divorce. Many of these laws require:

  • The signing of a collaborative law participation agreement. Both spouses must sign a collaborative law participation agreement, in which they:
    • consent to using the collaborative divorce method to resolve their dispute
    • describe the nature of the problems to be resolved
    • agree not to use the courts for any reason while the collaborative divorce proceedings are ongoing, and
    • spell out the conditions under which the process will end.
  • Open and full exchange of information. The couple must exchange the information needed to properly address the issues being negotiated, such as financial documents, records regarding any children, and a complete accounting of each spouse's assets. If a spouse lies about or withholds information, or fails to cooperate, the collaborative process will end.
  • Confidentiality. Even when spouses agree to participate in a collaborative divorce, they maintain the same attorney-client privilege they would have in any other case. Additionally, many states' laws require the spouses to keep certain communications made during the negotiations confidential.
  • A "no court" agreement. If the collaborative divorce process fails, the spouses' attorneys can't represent them in a divorce court proceeding.

In collaborative divorce, it's typical for spouses to pay their own attorneys. However, they can agree to split the fees charged by any experts.

The Pros and Cons of Divorce Mediation and Collaborative Divorce

To decide whether divorce mediation or collaborative divorce might work for you, it's important to understand the pros and cons of both.

Both mediation and collaborative divorce share some pros and cons:

  • Con: You still have to finalize your divorce. One drawback of both these methods is that successful completion doesn't automatically end your marriage—you must still get a final judgment of divorce from a court.
    • Pro: The major advantage of both mediation and collaborative divorce is that they can result in a written settlement agreement. Because you've agreed to the issues of your divorce in writing, you'll be able to file an "uncontested" divorce. Uncontested divorces are usually much less expensive than contested divorces, and courts are often able to issue a final divorce decree in a matter of a few weeks—not months or years.
  • Con: You might not reach a resolution. When you participate in mediation or collaborative divorce but don't reach an agreement, you'll have to file for divorce in court and begin the standard contested divorce process.
    • Pro: Although you might feel like you've wasted time and money, that's not necessarily true: By participating in ADR, you've likely gathered most, if not all, of the documentation and other evidence you'll need in court, which will save you considerable time down the road. And, you might have resolved at least some of your issues, possibly reducing the list of things you'll have to fight about in court.

Potential Downside of Mediation

One of the downsides of mediation is that most mediators don't want attorneys attending the mediation sessions. When a spouse brings an attorney to mediation, the atmosphere can seem combative, which flies in the face of what mediation is all about. So if you're uncomfortable not having an attorney present, you might want to choose collaborative divorce.

If you want to mediate but also want help from an attorney, you're free to consult with a lawyer between mediation sessions. And, if you reach a settlement, you and your spouse can consult with separate attorneys to ensure that you understand the separation agreement's terms and legal consequences.

Potential Downside of Collaborative Divorce

If your attempts at a collaborative divorce are unsuccessful, your lawyers can't represent you in a contested divorce. The downside is that if you have to file for a contested divorce, your new attorney will need to become acquainted with all the paperwork and other evidence your collaborative divorce attorney already reviewed, increasing your legal fees. However, on a more positive note, the prospect of higher legal fees might induce you and your spouse to make an even greater effort to settle.

In weighing collaborative divorce versus mediation, it all comes down to assessing your particular situation and taking the path you and your spouse are most comfortable with.

Collaborative Divorce or Divorce Mediation Versus Litigation

The downsides of litigating your divorce include:

  • Long resolution times. A litigated divorce must proceed pursuant to the state's and court's procedural rules. These rules provide specific steps the spouses and the court must take, as well as a timeline for completing them. Because of the required timetable, as well as the limited number of family court judges in any one county, it's not unusual for litigated divorces to take a year or more to conclude.
  • Expense. During a litigated divorce, spouses must appear in court for any number of reasons, such as status conferences and hearings. Also, whenever there's a dispute, the parties must write up their arguments (often in "motions" and "responses") for the judge to review. All of this adds up to higher attorneys' fees, as well as greater anxiety and frustration.
  • Inconvenience. Courts run on their schedule, not yours. The leeway you have in setting the dates and times of mediation or collaborative divorce sessions doesn't exist when your case is making its way through the standard divorce process.
  • Lack of privacy. Mediation and collaborative divorce sessions are confidential and do not become part of the public record. Courtroom proceedings and records, on the other hand, are generally open to the public. If you want to keep the details of your divorce away from the prying eyes of friends, family, and the general public, you'll want to avoid the courtroom.

Overall, most divorcing couples should explore ADR before heading to court. Many will find that the potential benefits of collaborative divorce and divorce mediation make them much better options than battling out their issues in court.

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