Mediation vs. Collaborative Divorce

Mediation and collaborative divorce share a common overarching goal to keep the divorcing couple out of court, thus sparing each party the many unfortunate consequences of litigated divorce. These consequences include the mental anguish of hearing the couple’s private matters aired in a public proceeding, the expense of hiring high-priced divorce litigators to battle each other in court, and the uncertainty of facing a court-imposed resolution that may — or may not – fully satisfy the desires of either party, much less the needs of the family’s children.

Consequently, both mediation and collaborative divorce represent excellent alternatives to the traditional, court-bound, adversarial process that can make the divorce process so expensive, drawn-out, and emotionally destructive.

There are, however, some meaningful differences between mediation and collaborative divorce of which, anyone considering these two alternatives to litigation needs to be aware.

 

How the process of mediation works

In the mediated divorce process, a husband and wife seeking to dissolve their marital union will work with a neutral party – typically an attorney trained as a mediator – to hammer out an agreement that satisfies husband and wife and appropriately provides for any children produced by the marital union.

In mediation, neither party is represented by the mediator. Instead, the mediator works as a neutral facilitator whose job is to guide the parties through the often complex financial, legal, and logistical issues associated with divorce.

Once a meeting of the minds between the parties is reached, an agreement is prepared by the mediator. Thereafter, the parties each hire a reviewing attorney. The reviewing attorney will read the document, explain the legal ramifications, propose changes if necessary, that may become the subject of further discussions facilitated by the mediator. Upon the execution of a final agreement, the process ends and either of the attorneys will file the agreement and the documents required to obtain a Judgment of Divorce from the court.

 

How the collaborative divorce process works

In collaborative divorce, each party is represented by a lawyer, but these lawyers don’t function as brawling adversaries in a “zero-sum” (“I win if you lose”) game. Instead, they work collaboratively as respectful “teammates” whose mutual goal is to work towards an agreement that will be a “win-win” for both parties.

Two other professionals are also on the collaborative divorce “team:” a trained mental health professional and a financial professional (typically, a forensic accountant or certified financial planner). The mental health professional’s role is to guide and support the parties through the often difficult and emotional issues such as custody and parenting time schedules; the financial professional’s job is to help each party create a budget and to analyze possible financial arrangements produced throughout the process.

The beauty of the collaborative divorce process is its full-spectrum approach to resolving the many issues – legal, financial, and emotional – inherent to every divorce. It’s also highly efficient because each meeting of the collaborative divorce team has an agenda and communication flows smoothly and calmly between the parties by virtue of it being facilitated by a professionally-trained team.

 

Which alternative to matrimonial litigation should you choose?

While mediation and collaborative divorce both provide tremendous advantages over litigation, choosing the right alternative course means asking a few questions of yourself, e.g.:

 

  1. Can you and your spouse work together directly to find common ground? Are you and your spouse on good enough terms now to work together productively with only a neutral facilitator in the room? Are you both capable of speaking up for yourselves without an attorney present? If the answer to both questions is “yes,” mediation may work very well for you. If not, the team-based approach used in collaborative divorce will be a better choice.
  2. Are you and your spouse equally knowledgeable about family finances? In circumstances where one spouse lacks knowledge of the parties’ finances the balance of power is lopsided and the spouse lacking knowledge feels at a disadvantage. In these circumstances, mediation may not be appropriate and the collaborative process is better suited to balancing the power dynamic.
  3. What is your financial condition? There’s no question that the financial costs associated with both mediation and collaborative divorce are much lower than hiring litigators and going to trial. But collaborative divorce, because it involves more professionals in its “team-based” approach, will generally cost you more than mediation, putting it out of range for families whose finances are already under great stress.
  4. How complicated is your financial picture? If you and your spouse have a good grasp of your asset/liability/income/expense picture and can both envision a way to equitably divide it, mediation is a good choice. But many couples – especially high-net worth individuals – may have very complex financials; if so, a forensic accountant or financial planner may be needed to provide clarity.

 

Going to court will always be necessary for some couples who are especially bitter, unable to compromise and hell-bent on obtaining revenge. But the non-combative approaches employed by mediation and collaborative divorce provide far better methods to dissolve a marriage peacefully, equitably, and respectfully.

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