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.
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).
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.
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:
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.
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:
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.
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.
The downsides of litigating your divorce include:
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.