Choosing Between Mediation and Collaborative Divorce
By choosing either mediation or collaborative divorce, a couple can avoid the adversarial posture taken in most divorces that are handled in the traditional way. While conflict cannot be avoided in divorce, the mediation and collaborative divorce processes can make conflicts constructive, rather than destructive. The parties can take ownership of the decisions that need to be made regarding financial and parenting issues and maintain control of the divorce process. The outcome is designed to maintain the relationship necessary to productively co-parent children after divorce while allowing each of the parents to move forward independently. In addition, both mediation and collaborative divorce are generally more cost effective than an adversarial divorce.
In mediation, a couple works with a neutral third party mediator, or sometimes, a team of two neutral third party mediators, to make the decisions that need to be made in connection with their divorce. The couple meets with the mediator over a period of weeks or months to gather facts, discuss goals, brainstorm options and choose solutions. While the mediator guides the discussions, the couple controls the ultimate decision making. A mediator generally will only offer possible solutions to the couple’s issues if the parties themselves are stumped. Some mediators, especially attorney mediators, will provide information about how a judge might decide an issue, but the parties are generally free to ignore this information and choose an alternative solution. The exception is where the solution the parties choose is so far from the norm that the mediator believes a judge will not accept the proposed agreement. It would be a disservice to the clients to allow them to go to court with an agreement that they cannot adequately justify to a judge. To do so would be to waste the client’s time and money.
Collaborative divorce is based upon the same general principles as mediation in that it is solution oriented and non-adversarial. As in mediation, the couple maintains control of the path the divorce will take and decisions are made outside of the court system. The main difference between mediation and collaborative divorce is that in collaborative divorce, the parties are represented by attorneys. Some people do not feel comfortable mediating for a variety of reasons. Perhaps they are less informed about financial issues that their spouse. Perhaps they feel intimidated by their spouse and are not comfortable advocating for themselves. They prefer to have their attorney by their side as they navigate the divorce process. Collaborative divorce also offers the option of divorce coaches, who are mental health professionals for emotional support, a financial specialist, who is trained in divorce financial management, and, when there are children of the marriage, a child specialist.
There is no right answer for everyone. It is a personal decision. Fortunately, there are two viable alternatives to an adversarial divorce. Collaborative divorce for those who need to be represented by an attorney, and mediation for those who do not.
