Collaborative Divorce or Mediation: Which is Best for My Divorce?

 

You may have heard horror stories about your friend or family member’s divorce.  That there was a battle lasting for years; that they came out of it with relationships damaged and worse than when they started; that it was rough on the kids. That untold sums of money were spent fighting. You may have decided that you want to divorce differently, and that you do not want to go through that kind of experience.

 

If this sounds like you, congratulations. The decision to divorce differently is a wise one. Utilizing one of the “no court” divorce processes can make your divorce less acrimonious and can help preserve familial relationships for the future. If you have children, even if they are adults, you and your ex-spouse will forever be tied and the method you choose for your divorce will affect whether those future encounters (for events such as weddings, grandchildren, etc.) are pleasant or difficult. If your children are young, the way you choose to divorce will be modeling behavior in relationships. If you choose a no-court divorce method, it will show that even if parents can no longer be married, they still care enough and respect each other enough to dissolve the marital relationship in a way that causes the least harm. And even if you do not have children, choosing to divorce in a non-adversarial way without court has many benefits for a couple. 

 

What is Mediation?

 

In the traditional model of mediation, the parties meet together with one neutral mediator, who may be an attorney or another professional. If the mediator is an attorney, she or he can file all the paperwork required to process the divorce through the court and obtain for the parties a legal divorce judgment. The mediator will also help the parties reach agreement about division of their property and debts, sharing time with their children, income sharing (i.e. support), if any, and any other topics they need to resolve. However, the parties ultimately make their own agreement rather than having it imposed upon them as in court. The mediator is neutral – she or he is not the attorney for both but rather the attorney for neither – and does not take sides.  The mediator may explain the law on each subject as much as possible without losing neutrality, but the parties may wish to agree to do certain things differently than the law says.  When going through mediation, each party may have his or her own consulting or reviewing attorney. This attorney is someone you can go to before the mediation starts and/or at any time during the mediation process to discuss things from your own perspective. Some parties may just see a reviewing attorney before signing the final agreement.  

 

What is Collaborative Divorce?

In Collaborative Divorce, each party has his or her own attorney. Often times they each have their own divorce coach as well, who can help with the parenting plan, if there are minor children, and also help the parties figure out their goals and regulate their emotions so the legal and financial negotiations go more smoothly.  There is also a neutral financial specialist who helps the parties look at all the possible financial scenarios and the outcomes if one is chosen.  And there is the possibility of using a neutral child specialist who meets the minor child(ren) and acts as the voice of the child in the Collaborative Process. The professionals and the parties agree that these professionals will not go to court, so if the process were to break down and one or both parties wished to instead pursue litigation, new professionals would have to be engaged.

 

What do Collaborative Divorce and Mediation have in common?  

 

Both Collaborative Divorce and Mediation are methods of dispute resolution that let a couple resolve all the issues of their divorce legally without having to set foot inside a courtroom. 

 

–They both preserve the family’s privacy by not requiring the couple to have hearings in open court. 

 

— They both allow the couple flexibility in scheduling meetings to discuss and negotiate the topics of the divorce. 

–Studies have found when parties make their own agreement, they are more likely to be content with it and to feel they can stick to it.

 

–In most areas, (with a few exceptions), the parties are free to reach their own agreement based on what feels fair to the two of them.

 

Which Should I choose? Some factors to consider:

 

— In Mediation, the parties are usually alone in the room with the mediator. This works best for parties who have fairly equal knowledge of the assets and debts and fairly equal power in the relationship. It tends not to work well when there has been any domestic violence in the relationship. 

 

— In Collaborative, you have your own attorney in the room during the negotiations. Some parties may be more comfortable with that support in place during meetings. This may be especially true if a party feels less confident of their knowledge of the assets and financial situation.

 

— Collaborative provides coaches who can help parties manage and regulate their emotions so that they can talk to their spouse more easily. This can make discussions much more efficient and productive for spouses who have a hard time talking to each other without getting angry or upset. 

 

— Mediation may have more flexibility in terms of scheduling meetings since, in the pure model of one mediator and two parties, there are fewer people’s schedules to coordinate.

 

If you are still not sure which process is best for you and your family, consult a lawyer trained in both Mediation and Collaborative to discuss your particular situation.