If you've just made the decision to end your marriage, there's no doubt it was probably one of the biggest and most difficult decisions you ever made in your life.
But now you have another important decision to make.
How to actually get the divorce.
You may have heard mediation is more peaceful and cost-effective. But you also want to more about what is collaborative divorce process and how these two methods compare.
Let's take a closer look at collaborative law vs mediation so you can decide which one is right for you.
Mediation vs Collaborative Divorce? You Decide.
There's a lot more to these divorce options and how they work, but here's an overview for each.
Divorce Mediation Overview:
Divorce mediation is a cooperative divorce method (alternative dispute resolution process whereby a neutral third-party (the Mediator) will help and guide a couple through resolving the issues and financial matters of divorce.
There is no requirement that a mediator be a lawyer and in fact, some of the most qualified mediators aren't lawyers at all.
When a couple chooses to mediate, lawyers are not also required at any point in their divorce unless either/both spouses choose to involve them. That makes mediating a good option for those who prefer to divorce without attorneys.
The divorce mediator will:
- Help you and your spouse (the parties) identify and understand the relevant subjects that need to be addressed in your divorce so informed decisions can be made by each of you;
- Act as peacemaker while guiding negotiations between you and your husband or wife on any areas of disagreement;
- Bring options to the table and help you create a mutually acceptable agreement that is customized to the unique needs of your situation and the unique needs of your children pertaining to your parenting plan and timesharing, child support, alimony (spousal support/maintenance/spousal maintenance), division of marital property and debts and other important topics;
- Draft much of the required paperwork including a Memorandum of Understanding which outlines the tenants of your agreement.
What is a Collaborative Divorce?
Collaborative divorce (also known as collaborative law process) is a hybrid between a "traditional" divorce using attorneys and divorce mediation.
- Each party would hire his/her own collaborative attorney (a divorce lawyer trained in the collaborative law process) to represent them. Just like in a "traditional" divorce situation, a lawyer's job is to try to get the most favorable outcome for their one client - a divorce attorney can only represent one person;
- Both parties and their respective collaborative family law attorneys sign a contract that states they are committed to using cooperative techniques instead of combative tactics to negotiate the various divorce issues. The contract is called a "participation agreement";
- In the Collaborative Process, a series of meetings take place between both spouses and their divorce lawyers along with other outside professionals as needed (such as financial professionals, child specialists, mental health professionals and mediators to negotiate and try to come to agreement on the subjects;
If agreement cannot successfully be reached on the relevant divorce issues using the collaborative process, the two divorce attorneys will be disqualified from representing the parties (spouses).
The couple (parties) will then continue on through family law court proceedings (divorce litigation), but will need to start over with new/different attorneys.
There are a lot of steps involved in the litigation process which varies from state-to-state and county-to-county, but at a very high, oversimplified level, each "new" attorney will work with the spouse that hired them to prepare their case in preparation of a court date.
Throughout the trial, documents will be presented to the family law court and the lawyers will argue their client's position.
And outside experts and/or witnesses will be called in to testify in front of a judge who will decide the outcome regarding child custody, timesharing, child support, division of marital property and debts and alimony.
To learn about mediation versus litigation or to understand the differences between mediators vs divorce attorneys, read: Divorce Mediation vs Divorce Lawyer.
To learn more about how each of these 3 divorce methods work (traditional litigation, mediation and collaborative law), read: The 5 Options for Divorce and How to Choose the Right One for You.
Mediation vs Collaborative Divorce: Other Differences Between the Two Options:
Number of Professionals Involved:
- In divorce mediation, couples work with 1 mediator.
- In a collaborative divorce, there are 2 lawyers, plus other outside professionals including: one or more financial experts, child custody specialists, therapists, mediators and/or coaches.
- Mediators are neutral third parties and don’t take sides. In the divorce mediation process, they work with couples together to help them reach mutually agreeable solutions that are fair to both and are in the children's best interest.
- A collaborative lawyer (or any type of lawyer) can only represent one spouse and their job is to advocate for their one client. So in the collaborative law process, each spouse would have their own lawyer to "fight" for them. Even if it's at the detriment of the other spouse or the couple's children.
Advice vs Information:
- Mediators empower their clients to make their own decisions.
- Lawyers give advice and frequently tell parties what to do.
Time to Completion:
A mediated divorce can take one to five mediation sessions (2 to 6 months) to complete and the speed and pace of the process is primarily directed by the two spouses.
Once the issues are resolved, the speed of the divorce process is related to the time it takes to file the divorce and get a court date to finalize the proceedings.
A collaborative divorce can take 8 to 14 months to complete.
The issues can typically be resolved in four to six group sessions that vary in duration.
The speed of the process is determined not only by how quickly all issues can be resolved, but, since there are a number of other people involved, also by the ability to coordinate the calendars of each party and their attorney, the financial professional(s), the child specialist(s), therapist(s), conflict coach, etc.
Other factors are related to filing with the courts and obtaining a court date.
- The cost of divorce mediation can range from $5,000 to $10,000 per couple.
The cost of collaborative divorce varies and can range from $25,000 to $50,000 depending on case complexity, the cooperation level between the parties and the number of outside professionals engaged in the process.
If the collaborative process is unsuccessful and a case subsequently goes to trial, the cost of divorce can range from $78,000 to $200,000.
Certainty of Outcomes:
- In a private mediation, since both parties have direct input into defining the terms of their settlement agreement, outcomes are certain and guaranteed.
Collaborative law process can be risky because if agreement cannot successfully be reached on all relevant issues, the lawyers will be disqualified from representing the parties.
The spouses would then need to start over again and pay new divorce attorneys as they proceed into the litigation process.
A litigated divorce is also risky because there are no guarantees as to what a judge's ruling will be for the issues.
- The mediation process is cooperative and non-adversarial. There are 3 participants working together in direct negotiations: the mediator and the two spouses.
- Despite the 4 or more parties sitting in the same room, collaborative divorce is still an adversarial process. The very nature of each spouse being represented by counsel fosters an “us versus them” mentality. So don't let the word "collaborative" fool you.
Collaborative Divorce vs Mediation: Which Should You Choose?
Listed below are some of the best reasons to mediate your divorce.
Use Divorce Mediation When:
1. You want what's best for your family.
In mediation, your children take center stage as you will be making decisions as parents, keeping your children’s best interests in mind.
2. You want a high level of control over the terms of your settlement.
You'll both have a high level of control over your settlement because you both will have a direct say in creating its terms and conditions.
In mediation, you won’t get legal advice and the mediator will not tell you what to do. Instead, you and your spouse will be fully empowered to make your own informed decisions.
You and your spouse will both have the opportunity to voice your concerns, be heard and have a direct say in the terms of your settlement.
Your agreement will only be final when both parties say it is. In mediation, you will have the opportunity to change your mind on issues as many times as you need to throughout the process.
3. You want your agreement to be fair to both you and your spouse.
Because the mediator is a neutral third party who doesn’t take sides, their job is to help you reach an agreement that you both find fair.
4. You want to keep things peaceful.
Mediation is a non-adversarial and cooperative process.
You don't need to agree on everything or be the best of friends in order to mediate your divorce. The mediator is a skilled professional and will help you negotiate the issues you do not agree on.
If you and your soon-to-be ex are both willing to mediate, mediation can work for you. And you can peacefully divorce without a lawyer.
5. You don't want your divorce proceedings to drag on forever.
When you look at divorce mediation vs the lawyer-driven collaborative law process, mediated divorces take significantly less time to complete.
The speed of the mediation process is controlled by you and your spouse.
And in mediation, all communications take place in real time so any disagreements can be discussed and resolved right then and there.
6. You want to save money.
The collaborative process is very expensive. You'll not only need to pay your respective lawyers for all of their time, but you’ll also have to pay for any other outside professionals brought into the process including the financial expert(s), child custody specialist(s), therapist(s), coach(es), etc.
But if you mediate and select a highly skilled mediator, you'll get a thorough agreement while saving tens of thousands of dollars on your divorce.
7. You and your spouse are both willing to cooperate and keep your proceedings transparent.
Mediation requires full disclosure and transparency in order to work.
So you and your spouse both must be willing to engage in a good faith negotiation and you both must be willing to compromise.
Use Collaborative Divorce vs Mediation When:
1. You cannot use mediation but still want to try to avoid litigation.
If your case is problematic and you cannot use mediation due to a dishonest, aggressive, uncooperative or reluctant spouse but you and your spouse still want to try to avoid litigation, the collaborative law process might be worth trying.
Collaborative divorce costs significantly more than divorce mediation, but less than litigation.
2. You want legal advice and an advocate to represent you and only you.
Since your collaborative lawyer will be representing you and only you, he/she can give you advice throughout the proceedings and advocate on your behalf if that is what you want.
Mediation vs Collaborative Divorce?
Ultimately, this is your divorce and how you choose to proceed is entirely up to you.
And the question of whether to use divorce mediation vs collaborative divorce depends on your circumstances.
But if you want a more peaceful, fair, thorough and cost-effective divorce that is better for your kids and better for you, mediation is not only the better choice, it’s the only choice.
Get our Free eBook to learn about more of the benefits of mediating your divorce.
Don't Let Your Divorce Become a Disaster!
Mediate with us instead.
If you and your spouse have both agreed to divorce and both want to mediate, book an initial meeting to get started!
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