What is the Difference Between Collaborative Divorce and Mediation?

I cannot count the number of times that prospective clients are shocked to learn that there are ways to divorce or resolve their family law dispute without the nastiness of court.  The court system is set up to be adversarial.  However, there are ways to resolve your family law dispute amicably without going to court. This does not mean that there will be no conflict. With the right professionals, there are alternative dispute resolution approaches that support parties resolving their conflict in more healthy and less traumatic ways.  Collaborative Divorce (also referred to as Collaborative Practice, Collaborative Law, or Collaborative Process) and Mediation are two such approaches.  Folks often confuse the two so here is an explanation of the differences.

Collaborative Divorce

Collaborative Divorce is a voluntary dispute resolution process where parties commit to settling their divorce or family law dispute without going to court.  A collaborative divorce is not limited to married spouses but also applies to unmarried couples who are separating or involved in a child custody dispute.  In a contested family law dispute, judges are required to make the final decision and are limited by state law.  Parties electing the Collaborative Divorce approach maintain control over the entire process.  The collaborative process allows parties to maintain flexibility and creativity in reaching solutions that focus on the needs and interests of their unique situation rather than focus on the rights and obligations defined by law.

In a Collaborative Divorce, each party hires an attorney specially trained in the collaborative process.  (Beware there are attorneys who claim to be collaborative law attorneys but have not received the specialized training). Each party, with their attorney, signs a collaborative participation agreement that describes the collaborative process.  Specifically, the parties agree to voluntarily disclose all information that is relevant and material to their case.  Each party agrees to use good faith efforts in their negotiations. Each party agrees to treat the other with respect.  The parties agree to keep the discussions and process confidential.   If the parties are unable to reach a settlement and a contested court proceeding commences, each lawyer’s representation terminates, and the parties must find new litigation counsel.  This provides a safe container for the parties to be creative without the threat of proposals or information being used against them in court.  It also provides the incentive to work through the issues and reach a final resolution.

The process utilizes a team approach that supports the parties throughout the process.  This process is a complete paradigm shift for attorneys.  Instead of proceeding in an adversarial manner, collaboratively trained attorneys with the parties work together to support the immediate and future needs of the family unit.  Parties also have the option to retain other professionals with specialized knowledge.  For example, a financial neutral (e.g. accountant or certified divorce financial advisor) are often retained to analyze the financial data and assist parties in generating settlement options on financial issues such as child support, alimony, and the division of property acquired during the marriage or relationship.   A mental health professional trained in the collaborative process (often referred to as divorce coaches or facilitators) can also be hired to assist in developing parenting plans.  Divorce coaches assist parties to work through the emotional and communication barriers that often impede resolution.

The most significant difference between a Collaborative Divorce from traditional litigation or mediation is that you and your spouse/partner have a team of trained professionals who are there to support and guide you through the entire process.  You have the benefit of lawyers, divorce coaches, and financial neutrals who are there to help reach the best possible outcome for your family. The process promotes open communication and transparency.  You are able to create shared solutions focused on your highest priorities.

Mediation

Mediation is another voluntary approach to resolving disputes for families in conflict.  Mediators are neutral professionals trained to assist divorcing or separating couples in reaching a settlement.  Unlike in a collaborative divorce, parties can retain a mediator without retaining an attorney. However, a mediator does not have the authority to make a decision for the parties nor can a mediator provide legal advice.  A mediator is a neutral third party who works with the couple to find a mutually acceptable resolution.

In mediation, the divorcing or separating couple meet with the mediator.  Each party has the option to retain an attorney, who can also attend mediation.  Mediation starts with everyone in the same room although some mediators prefer keeping the parties in separate rooms.  The mediator has the parties identify the issues that need to be resolved.  The parties then begin negotiations by offering their respective settlement proposals. The mediator then works with the parties to reach a resolution.  The mediator helps the parties focus on what is important and find areas of compromise.  Mediators can help clarify the issues, assess the strengths and weaknesses of each party’s positions, and provide reality checks. Mediators also offer creative approaches and innovative solutions while maintaining their neutral and unbiased perspectives.  Similar to Collaborative Divorce, mediation is a confidential process, which means that statements, settlement offers, or other information discussed during mediation cannot be used or brought up in a court proceeding.

Collaborative Divorce and Mediation are two effective alternative dispute resolution processes available to those interested in staying out of the adversarial court system.  Both processes minimize the trauma on you and your family.   Both processes are generally less expensive than a contested divorce, paternity, or custody dispute litigated in court.  Most important, you and your spouse/partner maintain control over the entire process.

If you are interested in learning more about collaborative divorce or mediation, you can contact Diana Telfer at (801)433-2403 or dlt@clydesnow.com