What's In This Article
Just as no two marriages are alike, every divorce is also different. How you separate from your spouse depends on many factors, such as the openness of your communication, your finances, and other factors.
Two of the most widely-used alternatives to traditional divorce filing are collaborative divorce and mediation. They offer ways to save money and time while also reducing conflict.
When considering collaborative divorce vs. mediation, which is best for your specific needs? Here's a rundown of their similarities, differences, and more.
What is Collaborative Divorce?
Also known more broadly as collaborative law, a collaborative divorce is a cooperative way to handle a divorce. The signature aspect of the process is that each party is represented by their own attorney, a specialist called a collaborative divorce attorney.
As with any attorney, a collaborative divorce attorney represents their client's, and only their client's, best interests 100% of the time. However, to achieve those goals, collaborative attorneys use cooperative dispute resolution techniques instead of more aggressive ones.
Additionally, before negotiations start, everyone involved (ex-spouses and attorneys) signs a Participation Agreement. It's a legal contract that says everyone is committed to using cooperative legal techniques and no party will file for divorce until the collaborative legal process is finished.
The process itself typically involves four to six meetings between the parties. Each meeting is normally about an hour long. Meetings are held in a legal office (or might switch between the two offices). Aside from the divorcing couple and their attorneys, other participants might include neutral experts in finance, mental health, child development, and so on.
Collaborative Divorce Pros & Cons
What is Mediation?
Mediation is another divorce method based on cooperation. The process involves a mediator, a neutral third party who facilitates discussion, organizes topics and otherwise helps resolve issues.
A divorce mediator isn't required to be an attorney, and many aren't. Instead, many are retired judges or simply professionals trained in divorce mediation. You and your ex-spouse are both allowed to hire your own attorney to provide advice during the mediation process, but legal representation isn't required.
During the mediation, the mediator will help the couple develop a plan based on their specific needs. Common issues include alimony, property division, child support, child custody arrangements, and more.
Once arrangements have been agreed upon, the mediator will draft the required paperwork and help you file it with the court as relevant. Typically, the most important document created during the mediation process is the Memorandum of Understanding, which provides an outline of all agreements reached.
Mediation has a high success rate. One important reason why is that couples enter mediation with the expectation of working together. Plus, mediation offers plenty of opportunities to negotiate, which helps everyone get more of what they want.
Mediation Pros & Cons
Collaborative Divorce vs. Mediation Comparison
Collaborative divorce and mediation are both alternatives to a traditional litigated divorce, where each party presents their case in court for a judge to decide. While collaborative law and mediation share a foundation based on amicable cooperation, the two methods have some distinct differences.
Here's a table showing the similarities and differences of collaborative divorce vs. mediation:
|Handles Child Custody?||Yes||Yes|
|Handles Property Division?||Yes||Yes|
|Number of Meetings||Between four and six one-hour meetings||Between one and three one-hour meetings|
|Total Time to Complete||About eight to 14 months||About two to three months|
|Costs||Typically low to mid thousands||Mid-thousands and higher|
|Number of people required||Three – divorcing spouses and mediator||Four or more – spouses, their attorneys, and experts|
Read More: Guides To Getting A Divorce In Every State
How to Choose Between Each Option
Both collaborative law and divorce mediation require the same foundation. The divorcing couple must have an amicable relationship based on honest communication. Either method only works if the following conditions are met:
- Both parties must have accepted the divorce emotionally.
- No assets are hidden, including both bank accounts and physical property
- Both parties are open to sharing all relevant documents, such as financial documents, when necessary.
- The relationship has no history of violence or other abuse.
- Resources, financial and otherwise, are plentiful enough that neither party will be left with no assets.
- The parties both understand that these methods are far preferable to divorce court.
Perhaps most importantly, both parties must hold a sincere desire to reach a fair settlement. Once those requirements are met, the divorcing couple will likely benefit from either collaborative law or mediation.
When to Use Divorce Mediation?
If the divorce is amicable and relatively uncomplicated, the best option is usually mediation. It requires fewer “moving parts” than a collaborative divorce.
Mediation is usually the quickest way to settle issues. Meetings typically last an hour, with most couples needing two or three sessions to finalize everything. Disputes are settled in real-time under the guidance of the professional mediator, which means potential problems are taken care of right away.
Mediation is also the best option for spouses who want to save as much money as possible. In a collaborative divorce, each party must have to hire an attorney along with other experts as necessary, such as child custody specialists or financial experts. With mediation, the parties only need to hire a mediator.
Many parents prefer mediation instead of collaborative divorce. Mediation allows for easier co-parenting opportunities, as parents can work with the meditator to develop not just a plan for custody but also general care.
With mediation, the child doesn't have to spend time in court. Plus, reducing parental conflict during divorce correlates to a reduction in long-term depression among children.
Finally, mediation often results in mutual satisfaction for both parties. If the divorcing couple simply wants to divide their property fairly and move on with their individual lives, mediation can make that happen efficiently.
When to Use Collaborative Divorce
Collaborative divorce is useful in situations that aren't contentious enough to warrant litigation, but there's enough distrust and animosity between the parties that each person will want their own legal representation.
Hiring attorneys does increase the costs, often significantly. However, in some situations having someone who only looks out for your interests is worth the extra expense. For example, if you're in a situation where your spouse was the primary breadwinner during the marriage, an attorney can help you obtain any earnings you're legally entitled to.
Another reason to choose collaborative divorce over mediation is the availability of experts. If you need to hire a child therapist, accountant, or other professionals, the collaborative law process is usually the easiest way to do that. Attorneys on both sides have to agree that the individual is both an expert and suitably impartial, ensuring they'll remain fair.
Even though collaborative divorce is more expensive than mediation, it's also significantly cheaper than litigation. Couples who don't necessarily get along often agree to stay on their best behavior during a collaborative divorce. After all, any money saved is then available for distribution between the two parties.
A litigated divorce is rarely in either individual's best interests. Even if a collaborative divorce becomes contentious, both parties typically benefit by trying to complete the process, as court outcomes are far less predictable.
Understanding the difference between collaborative divorce vs. mediation can feel confusing at first. Here are quick answers to common questions about each method.
Lauren Cook-McKay is the Vice President of Marketing at DivorceAnswers.com. She holds a Master’s Degree in Marriage and Family Therapy (MFT) from the University of San Diego and applies her training in private practice to helping couples struggling in their marriage. She believes there is hope in all marriages and strives to provide therapy to couples that will lead them back towards a loving marriage, or an amicable divorce that brings peace and closure.