Divorce mediation is an alternative dispute resolution process where a neutral third party helps the couple discuss the terms of their divorce. The couple and mediator can also agree to bring in other necessary professionals into the process, as long as they’re also a neutral party.
This divorce method is for couples who are willing to cooperate and be transparent in order to avoid legal action and high financial costs. It can also last just several months.
Meanwhile, a collaborative divorce process works by having each party hire an attorney trained in collaborative law divorce to help them reach an agreement regarding the terms of their divorce. Collaborative divorce can last around a year and costs significantly more.
Couples may choose a collaborative divorce vs mediation if they prefer the security of having a collaborative divorce attorney help them through the nuances of their case.
These divorce options are cheaper and offer more privacy than the traditional divorce process.
Whichever of the two divorce proceedings a couple chooses depends on factors such as a couple’s budget, preferred confidentiality level, and hostility level towards the other party.
This article will cover the differences between collaborative divorce and mediation — as well as when each of the two methods is a better option for couples.
What Are the Differences Between Divorce Mediation and Collaborative Divorce?
The differences between divorce mediation and collaborative divorce (also known as collaborative law) include:
- Level of control for divorcing parties
Whichever of the two methods is better for a divorce case depends on the couple’s needs.
Level of Control for Divorcing Parties
One of the primary differences between collaborative divorce and mediation is how much control each method provides both parties.
The mediation process requires a neutral third party to guide the couple’s talks about the terms of the divorce.
Mediation offers a greater level of control for divorcing parties because they are the ones deciding on the terms of their own divorce. This includes determining factors like child custody, child support, spousal support, and asset division.
Mediation doesn’t force a settlement, either. That means either spouse can opt out of the process, and no one can force them to accept an outcome they don’t like.
The mediators are there to ensure that the couple’s conversations cover all bases and to clarify and finalize the documents needed for the divorce.
Legal representation is optional in mediation. Even if there are lawyers present, the divorcing couple should still be the primary participants in the divorce proceedings.
In contrast to mediation, collaborative divorce involves each party having their own collaborative divorce attorney present during a series of meetings where the terms of the divorce will be discussed.
These two lawyers will advise their own clients on the best courses of action.
However, the goal of the collaborative divorce process is to be as fair as possible — so couples may need to compromise more than they wish for in terms of assets and responsibilities (like child support and child custody) so they’re divided as fairly as possible in the eyes of the court.
The collaborative law process is risky since if both parties can’t settle on important terms, the two attorneys will be disqualified from further representing them. This is because a collaborative lawyer can only represent one spouse at a time.
The couple will then proceed to litigation, each with a new attorney or lawyer. The judge’s ruling will be final even if the couple won’t be satisfied.
Despite that risk, collaborative law divorce might still be good if either spouse is dishonest, uncooperative, or reluctant, but both parties still want to avoid litigation.
That’s because collaborative professionals are present to work in the best interests of their clients.
Mediation is less formal and more flexible since both parties decide when and where a session will take place. The mediator will meet with both parties as individuals and as a group until an agreement is reached.
The process is optional, so either party can opt-out at any time. They also can’t be forced to agree to an outcome they don’t like.
In contrast to mediation, collaborative divorce involves a more formal and stringent process. This includes both collaborative law divorce attorneys presenting evidence and making legal arguments.
In a collaborative divorce process, both parties must enter into what’s called a Collaborative Agreement — a legally binding contract that requires each spouse to engage in the collaborative process.
Aside from lawyers, other professionals can be called in during the process.
For instance, child specialists can facilitate discussions involving children. Meanwhile, a financial professional can help distribute accounts and assets more fairly.
Each collaborative law divorce attorney must be present for every conversation so the couple won’t be left alone.
Mediation can be started immediately. How long it lasts depends on both parties since they control the speed and pacing of sessions.
A mediated divorce can normally be resolved within one to four sessions.
Once both parties reach a settlement agreement, how fast the uncontested divorce proceeds depends on how long it will take to file the divorce and get a court date to finalize proceedings.
In contrast to mediation, collaborative divorce involves a longer process — taking close to a year or more.
That’s because it’s a process that involves several meetings. The couple meets face to face, each with their own attorney, and they also meet with their own attorneys separately outside those sessions.
On top of that, various professionals might also be involved, such as child specialists and financial professionals. Of course, factors like obtaining a court date and filing also add to the length of the collaborative law process.
Mediation usually costs around $7,000 to $10,000. Divorcing couples can save money with mediation since they will only need to pay for documents, filing, and hiring a mediator.
In contrast to mediation, collaborative divorce can involve more fees.
While couples don’t expressly need a mediator, they’ll each need to hire their respective attorneys. On top of that, they may need to pay fees when engaging with outside professionals.
Due to these additional factors, collaborative divorce generally costs about $25,000 to $50,000.
Another reason that it’s more expensive to undergo collaborative divorce vs mediation is that if the collaborative process is unsuccessful, the case can subsequently go to trial.
Each collaborative law attorney will need to conclude their representation of both parties. That means each spouse will need to hire a new lawyer who will represent them in court.
Despite that, it’s worth noting that collaborative law still costs less than litigation.
In mediation, what happens in the sessions is private — only the couple and the mediator will know the details. Any information will only be shared publicly if both parties consent to it.
In contrast to mediation, collaborative divorce involves having professionals (especially lawyers) in the same room as the couple. The process is confidential and transparent.
Note that collaborative law is still an adversarial process in its very nature due to each party requiring legal counsel.
In Which Circumstances Is Divorce Mediation a Better Solution?
It’s better to undergo a divorce mediation vs collaboration if couples want greater control over settlement terms. Couples can sit down and talk about property division and child custody in a way that seems fair for both of them.
A divorce mediator works only to guide the conversation between the separating couple. A skilled mediator can help couples reach a good settlement agreement without bringing additional parties, like a custody specialist or divorce coach, into the process.
A mediator doesn’t have to be an attorney, but it’s quite common for a family law attorney to play the role. However, even if the mediator happens to be a family law attorney, they cannot give specific legal advice to either party.
Mediation lets couples prioritize family since a litigated divorce can be very stressful for everyone. A traditional divorce can be stressful for children as well, even if temporary accommodations are made for them.
Family mediation is a good option if the divorcing spouses agree to cooperate and be completely transparent. It’s also a good option if soon-to-be exes want to keep the process as private as possible.
Admittedly, it might be harder for couples to resolve complex issues by themselves in this divorce process. However, as long as the couple and mediator agree, other neutral third parties, like financial professionals, may also be brought in to help.
Couples may also engage in independent counsel with their own lawyers outside of mediation sessions.
In Which Circumstances Is Collaborative Divorce a Better Solution?
Collaborative divorces are a mix between traditional divorce and mediation. It’s a good divorce method for those who want to avoid litigation while also having the security of a consulting lawyer.
It’s better to undergo collaborative divorce vs mediation if couples want a legal advocate without going to court. Other professionals, like custody specialists, can also play a role in this process.
Thanks to that, this divorce process can handle more complex cases better than mediation.
Both parties and their respective collaborative divorce lawyer will need to sign a contract that commits them to be cooperative, low conflict, and candid in negotiations.
A breakdown in collaborative divorces means the couple will need to file a divorce petition for litigation.
Addressing Power Imbalances
A collaborative divorce vs mediation can also be better if there’s a power imbalance between the couple — such as when there’s domestic violence. That’s because collaborative attorneys act with the client’s best interests in mind.
As such, the “inferior” spouse won’t be taken advantage of since collaborative divorce aims to be as fair as possible, and their attorney will ensure that.
Lawsuits are also actually less likely to happen during collaborative divorces. That’s because the presence of attorneys lowers the chances of competition between the couple as well.
Since each party hires its own divorce attorney, they each get legal guidance that’s tailored to their situation.