When it comes to filing for divorce, many may conjure up the image of a lengthy, contentious court trial. While litigation may be necessary for some scenarios, it doesn’t have to be the standard for how a divorce unfolds. If you are considering a divorce, but your stomach turns at the thought of going to court, there are other options available to you. Both mediation and collaborative divorce are alternative approaches to a litigated divorce that help separating couples stay out of court and work through their divorce amicably. While both approaches to divorce are non-litigious, there are several important distinctions between the two. In this blog post, we explore the differences between mediation and collaborative divorce, as well as the benefits of each.
A Quick Comparison
Neither mediation nor collaboration is necessarily going to be the best or worst choice in all cases. Which approach to use is determined by the unique circumstances of your case, your individual preferences, and the availability of a great mediator or collaborative attorney.
Here is a summary of the most common factors that may influence your choice.
The important features of mediation are:
- A neutral person (mediator) helps you negotiate.
- A mediator has no power to decide the case.
- Mediation is an informal process.
- Mediation is a flexible process.
- There is no obligation to hire a lawyer (or other adviser) to attend mediation.
- Mediation is efficient and less time-consuming than traditional divorce litigation.
- Mediation is an inexpensive process compared to traditional divorce litigation.
The important features of collaborative divorce are:
- Each spouse is represented by a collaborative attorney.
- Each spouse and attorney sign a “no court” agreement.
- Collaborative attorneys must withdraw from representation if the process fails, and the case goes to court.
- Each spouse and his/her attorney negotiate in “four-way” meetings.
- Attorneys typically recommend involving collaborative professionals.
- Collaborative divorce is an informal process.
- Collaborative divorce is a flexible process.
- Collaborative divorce can be more efficient than traditional divorce litigation.
- Collaborative divorce is more expensive than mediation but is less expensive than traditional divorce litigation.
What is Divorce Mediation?
Mediation is a process where parties agree to resolve a dispute privately with the help of a neutral third person, known as the mediator. The mediator acts as a facilitator, helping both parties discuss, negotiate, and come to mutual agreements on their divorce matters.
While the mediator works to help both parties come to an agreement, they do not have the power to make a legally binding decision on behalf of the divorcing couple.
Factors Favoring Mediation
Mediation is more flexible than collaborative divorce. For starters, you need only three participants for mediation to take place: you, your spouse, and the mediator. There’s nothing to stop you from adding other people to the process if you need them, but you’re not required to have attorneys or other professionals actively involved in the process. Mediation is also likely to be more flexible than collaborative divorce when it comes to the procedures you will follow. Most collaborative attorneys belong to a collaborative group with its own rules (“protocols”) that will apply to cases handled by group members. This can be viewed as a positive in that it minimizes the possibility of miscues between the professionals. However, the trade-off is that you have less input than you would like in how and when things happen in your case. This won’t happen in mediation, where you work directly with the mediator on deciding both the process and the substance of your case.
Mediation is more efficient and cost-effective than collaborative divorce. Just from a logistical standpoint, coordinating the calendars of four or more people, at least two of whom are busy attorneys, is time-consuming, one that can add to the cost of the process. In addition, the active participation of two attorneys, and possibly other professionals, makes the cost much higher than a mediation in which the two spouses usually meet alone with the mediator.
Downsides to Mediation
Mediation is not for everyone. Mediation only works when the parties truly can work together, and many couples going through a divorce can barely stand to be in the same room with each other, let alone work rationally through property division or a custody schedule. Also, mediation works best when the issues are manageable. Parties with significant domestic violence or substance abuse allegations would not be good candidates for mediation because they would require outside counsel – not just an attorney but a guardian ad litem for the children. While it is true these parties could work through these issues together, the risk of not having sufficient information or protections put in place before mediation may be too high. If you can’t settle through mediation, you may have to start over, and you will have “lost” the money you spent on the mediation process. In addition, if mediation doesn’t result in an agreement, there is a temptation to completely abandon the idea of coming to a mutually acceptable settlement. If so, your case could become highly contentious. These downsides are minimal though because the cost of mediation is generally so reasonable.
What is Collaborative Divorce?
Collaborative divorce is a relatively new type of divorce proceeding in Missouri.
With this method, each spouse must work with their own collaborative divorce attorney and a team of collaborative divorce professionals, including financial advisors, mental health professionals, and other relevant advisors. At the outset of a collaborative divorce, parties agree not to litigate, and they work together toward a mutually agreeable resolution to a divorce agreement. In a collaborative divorce, all meetings are conducted with both spouses and their respective attorneys present. Clients are also able to meet separately with their attorneys to discuss matters.
Do I need an attorney for collaborative divorce?
During a collaborative divorce, both parties must retain a specialized attorney as their counsel, along with a range of other collaborative divorce professionals. If you need the guidance of an attorney looking out for your interests every step of the way, you might find collaborative divorce a better option than mediation. For example, your case might involve some complicated legal or financial issues that you don’t feel competent to negotiate. Or you may just be more comfortable with the idea of having a professional to confer with at every turn. In collaborative divorce, the two attorneys guide every aspect of the case, so this approach would address your need for representation throughout the process. Suppose there are long-standing dynamics in your relationship with your spouse that leave one or both of you feeling at a distinct disadvantage in conversations about difficult subjects. In that case, you might want the added insulation and structure provided by collaborative divorce. Having a good collaborative attorney at your elbow can sometimes give you more confidence in expressing what’s important to you, even in the face of your spouse’s disapproval.
Downsides to Collaboration
The primary downside to collaboration is that if it doesn’t work, your collaborative lawyer is required to withdraw, and you must start all over with a new lawyer and possibly new experts and advisers. This means a lot of expense and delays while you get your new lawyer up to speed on the case and retain new professionals. Some lawyers are critical of collaborative divorce for this reason. In addition, some lawyers argue that collaborative law blurs the role of your attorney, who is expected to look for compromises and solutions acceptable to the other side while at the same time representing your interests. Another argument that can be made against collaboration is that because lawyers are more involved in the negotiating process than they generally are in mediation, you may be less likely to arrive at creative solutions. One of the strengths of a nonadversarial process is that the law is only a guidepost, not a mandate, and you are free to decide what will work for you. The more lawyers are involved in the process, the argument goes, the less outside-the-box thinking will be applied. As in the case of unsuccessful mediation, there is some risk that a case can become very adversarial if collaboration fails because there can be a tendency to give up on ever reaching a reasonable settlement. A solution to this problem is to spend time developing an “exit plan” if it looks like collaboration is not working. However, this may not always be possible.
Should you need the assistance of an experienced divorce mediator, know that we are here to help and ready to schedule an initial mediation session with you.