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
Pros
Increased personal protection. A collaborative divorce lawyer looks out for your interests, and only your interests, every step of the way.
Reduced costs compared to court. Even if your relationship with your spouse is contentious, you can still reach an agreement without the hassle and expense of court proceedings.
Increased privacy. Details of the relationship are kept out of court.
Reduced animosity. While collaborative divorce is still somewhat adversarial, the practices of collaborative law help encourage a fair, mutually-beneficial outcome.
Cons
Increased costs compared to mediation. Hiring your own attorney is often much more expensive than splitting the cost of a single mediator with your ex-spouse.
Longer process. Collaborative divorces take an average of eight to 14 months to complete. Many times, the process takes longer simply because multiple people all need to coordinate their schedules.
Reduced privacy compared to mediation. Lawyers for both parties will hear details about your relationship.
Potential waste of time. If the two parties can't agree on terms, then the collaborative process can fail, moving the divorce into court. Unfortunately, your collaborative law attorneys can't represent you at that point, so you'll need to hire a new attorney.
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
Pros
It's the fastest way to get a divorce. If the parties agree to the core elements such as property division and child custody, a single hour of mediation might be all that's necessary.
It's the most cost-effective option. The divorcing couple only needs to hire a mediator, and in many cases, they only need them for a few hours.
It's the least contentious. A neutral, third-party mediator understands how to create fair solutions that will satisfy both parties.
It's private. The only person who hears details about your marriage is the professional mediator.
Cons
Mediation requires open, honest communication. It won't work if one party is hiding assets or otherwise obscuring facts.
Mediators can't give you legal advice. You might end up entitled to more than you receive.
Mediation isn't allowed in certain situations, such as those involving abuse, domestic violence, substance abuse, mental illness, or ongoing criminal issues.
Mediation doesn’t necessarily ensure a fair outcome. You won't have an attorney on your side looking out for your best interests.
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:
Collaborative Divorce
Meditation
Requires Attorney?
Yes
Optional
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
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.
Do I Need an Attorney for Collaborative Divorce or Mediation?
In collaborative divorce proceedings, each participant is required to have their own attorney. You'll need a type of attorney called a "collaborative divorce attorney" or a "collaborative attorney." They have special training in the cooperative, non-adversarial approach used in collaborative divorce law.
With mediation, hiring your own attorney is optional. Many people choose not to hire a lawyer. After all, the idea behind mediation is that any disputes will be minor and handled by the mediator. However, if you feel that hiring an attorney will benefit you, it's allowed under mediation rules.
Is Mediation Better Than Divorce Court?
While all divorces are different, mediation offers more benefits than divorce court (technically called a "litigated divorce") in most situations.
Mediation is cheaper, faster, and less contentious than court. In a litigation divorce, you'll need to hire an attorney. Plus, getting a court date takes far longer than arranging for mediation.
Both parties have far more control over the decisions made in meditation compared to court. Mediation offers the opportunity to negotiate, but the outcome of a court case is ultimately decided by a judge.
Is Collaborative Divorce Cheaper?
In a collaborative divorce, each party must hire their own collaborative divorce lawyer. Attorney fees are the greatest contributor to the increased costs.
In a litigated divorce, you'll need to hire a divorce attorney, which is a different (and usually more expensive) type than a collaborative law attorney. Plus, court proceedings have the potential to drag on for a long time, while a collaborative divorce adheres to a shorter and more predictable schedule.
Is Collaborative Law the Same as Mediation?
They're different processes, although they have a similar foundation. Both collaborative law and mediation allow for easy, fair, and cost-efficient divorce based on open communication between parties.
Mediation is the simplest option. A professional mediator will meet with the divorcing couple for several sessions, during which they'll facilitate estate distribution, child custody issues, and more.
Collaborative law is for divorces that are more contentious or complicated. Each party is represented by their own attorney. Each attorney agrees to collaborative legal processes, which emphasize cooperation and openness.
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.
