By Divorce.com staff
Updated Mar 07, 2023
Divorce proceedings can be quite stressful, especially if there are several assets to divide or you can’t decide on a child custody agreement. In many cases, spouses choose to have their divorce attorney represent them. This can be ideal for couples who would rather have their legal advocate to help them navigate the collaborative divorce process.
In cases where the couple cannot resolve their issues, they could opt to bring in a third party. This is called mediation, a much faster way to resolve disputes that is usually more effective and allows both parties to save money. Mediation also typically results in less stress overall for everyone involved, but which one is right for you?
What Is Collaborative Divorce?
Collaborative divorce is a more recent approach to divorce developed in 1990 by Stuart Webb. It is based on collaborative law, his creation. Collaborative law is an alternative dispute resolution often used in divorce proceedings or family law cases such as child custody battles, adoption, or domestic violence.
Each party involved in the divorce must hire their lawyer and can bring in other subject matter experts if needed (ex: financial professional). During a collaborative divorce, if either spouse threatens to sue the other, the proceedings are concluded, and the consulting lawyers cannot represent them any further. They’ll each need to hire a litigator to represent them in court.
Advantages of Collaborative Divorce
Many advantages come with settling divorce cases outside of court. Going to trial and presenting a claim to a judge can be very stressful, and many prefer to avoid that. Since each spouse has an attorney, things will run more smoothly than if they tried to settle things independently. Here are some pros to opting for a collaborative divorce.
- Conflict is less likely. With both lawyers present, it is less likely that couples will have competition. They’ll also be able to receive legal guidance throughout the process, so everything runs as smoothly as possible.
- There’s no need to go to trial. If one or both spouses is anxious about going to court and presenting themselves in front of a judge, they won’t have to. They can meet with their lawyers anywhere they’d like to discuss the case. This option is also often less expensive than a trial.
- Couples get more privacy during a sensitive time. When divorce cases go to trial, everything becomes much more public. For those who wish to keep the details of their separation between themselves, collaborative divorce is a great choice.
- Lawsuits are less likely. As mentioned, if either spouse threatens a case, their consulting lawyers cannot represent them anymore and must conclude the divorce proceedings. However, this divorce method makes it much less common for couples to sue each other during or after.
- A sense of security. Since both parties have their representation to advocate for them during the collaborative divorce process, they’re more likely to remain calm throughout. However, conflict can arise if there is a power imbalance and one party feels taken advantage of.
Both attorneys are present for every conversation; the couple will never be left alone. All issues will be individually addressed until everything is resolved and a settlement agreement is reached. This could take less than a day for couples that don’t have a lot to iron out.
Disadvantages of Collaborative Divorce
It’s also important to consider the downsides to collaborative divorce before making any decisions; however, there are only a few. Here are some disadvantages that come with collaborative divorce cases.
- Couples could get less than they’d like. In a traditional divorce, couples can fight to have certain assets. In a collaborative divorce, couples will have to compromise more because the goal is for the proceedings to remain fair. The term “fair” means things will be divided as evenly as possible, but that doesn’t mean one or both parties will be fully satisfied.
- It might cost a lot. Every situation is different, and just because a couple opts out of court, it doesn’t mean they’ll necessarily save money. Remember, if either spouse threatens to sue, their lawyers cannot represent them anymore and must conclude their representation of both parties. If one wishes to sue the other, they must hire a new lawyer (litigator) and settle in court.
- Both parties must be aligned. If both parties can’t agree to this divorce method, things could get out of hand. Couples need to make sure they are on the same page to avoid potential conflict down the line.
Ultimately, whether or not a couple chooses collaborative divorce depends on their unique situation and overall needs. If you feel this is the right option, ensure you and your spouse are unified.
When Is Collaborative Divorce Best?
The collaborative divorce process is best for couples who wish to have legal representation or want to avoid a lawsuit and mediation. It is also helpful in resolving issues that fall under family law, like child custody disputes.
You Wish To Avoid Litigation Without Mediation
Litigation is simply the process of taking legal action against someone. For couples that want to avoid a lawsuit and would instead not go through mediation either, collaborative divorce is the next best option.
You Want a Sole Legal Advocate
If spouses want to have their own attorney, this process would be the ideal choice. Some couples want to have individual legal representation because they’ll feel more confident navigating the nuances of their case. Lawyers can help divorce proceedings run much smoother.
What Is Mediation?
Mediation is another alternative dispute resolution that involves bringing in a neutral third party as a mediator, usually a consulting lawyer. This option is best for couples who aren’t able to come to an agreement and resolve their issues without conflict.
The mediator’s role is to help both parties find a compromise. They can also offer advice and assist couples in drafting their settlement agreement. The mediator doesn’t take sides; they help break down the issues and help teams communicate effectively to reach a solution that benefits them.
Advantages of Mediation
There are many advantages for those who opt for mediation over a collaborative or traditional divorce. Mediation can save divorcing couples time and money when done correctly. Here are some of the perks that come with choosing this method.
- It’s private. Unlike typical court proceedings, mediation allows couples to keep their personal information confidential. The only way any information could be shared publicly is if both parties consent to it.
- It’s optional. Mediation is not forced; either spouse can opt-out at any time. It doesn’t matter what stage of the process they are in.
- It’s convenient. Since they don’t need to go to court, both parties can meet at the best location. The neutral third party will meet with them individually and as a group until an agreement is reached.
- It doesn’t force a settlement. Since each party has the power to control their negotiations, no one can cause them to accept an outcome they disagree with. Both parties must take the judge’s ruling in court, even if they don’t like the end result.
- It’s faster. The court system tends to drag things on for a while. It’s often a hassle just to get an initial court date. Some divorce cases take years to close because of factors like this. Mediation can be initiated immediately, and cases tried using this method are typically resolved promptly.
- It’s less stressful for relationships. Since a neutral third party is handling the dispute as opposed to individual attorneys, couples are more likely to work as a unit. Instead of fighting against each other, they work together to find a solution that benefits them both.
Disadvantages of Mediation
There aren’t too many disadvantages to mediation, especially if both parties are willing to compromise, but there are a couple of things to consider before you choose this option for your divorce.
- If both parties can’t agree, they’ll have to court. If you cannot settle with your spouse, you’ll have to sue them in court. Typically, the lawyer that consults on cases like this is not a litigator, meaning they can offer legal advice but can’t represent you if your case goes to trial.
- The neutral third party cannot force a resolution. Both parties must reach an agreement on their own. This differs from the traditional court process, where judges can rule how they see fit.
If you feel like it’s possible that you and your spouse will have trouble agreeing on things and will end up taking the case to court, mediation might not be the best option for you. This method works best for couples on the same page and willing to meet in the middle.
When Is Mediation Best?
For some couples, mediation will be the best option. It’s often more seamless for both parties, especially if children are involved.
Finalizing child custody arrangements, allocating child support payments, and determining alimony or spousal support (if applicable) is much easier in a setting where both spouses agree to be amicable and reach a fair solution.
Prioritizing Your Family
Mediation allows you to put your family first. Long and drawn-out court proceedings can be very stressful for everyone involved, especially small children. The faster a resolution can be reached, the easier it is to move forward and not put a strain on the family that affects your relationship long-term.
You Want Greater Control Over Settlement Terms
Mediation is also ideal for those who want more say in the outcome. When it comes to issues like property division, many people prefer not to leave it up to a judge or go back and forth in collaborative divorce proceedings. If you can sit down with your spouse and come to an agreement that you both can accept, it will result in a better outcome for both of you.
Seeking Fair Terms for Both Parties
The length of the mediation process is determined by how quickly both parties can settle. You can do that if you need to spend more time ensuring everything is as fair as possible. Or, if you and your spouse agree on everything, the divorce case can be concluded very quickly.
Saving Money and Time
Mediation is much faster than a traditional divorce, which can take several months or even years when tied up in the court system. Collaborative divorces often take longer, especially since each party has their representation adding to the conversation. If you and your spouse can sit down with a third party and reach a compromise, you’ll save so much time and money.
Both Parties Willing To Be Transparent
You must be open and honest during mediation, or it will not work. If one or both parties withhold information or are defensive or combative, mediation will not be effective. You and your spouse need to be prepared to lay everything on the table, even the things that aren’t easy to discuss.
Collaborative Divorce vs. Mediation
So, what are the differences between collaborative divorce and mediation? You’ll want to consider your time in reaching an agreement and how much you have to pay for the divorce.
Number of Outside Professionals
This number is much higher for collaborative divorce. Examples of outside professionals include child specialists and financial professionals (ex: accountants).
Time and Cost
Mediation will typically take less time and save you more money overall, especially since you won’t each be paying a lawyer to represent you.
Hostility of Proceedings
Couples who choose this option are usually willing to have a calm discussion and reach an agreement without conflict. Also, since neither party has an attorney present, it feels less like a battle against the other.
Strength of Outcome
The outcome of mediation is often more substantial than the outcome of collaborative divorce; both parties are usually happier with the terms since they were able to figure it out as a unit.
Traditional divorce proceedings and collaborative divorce can move quite slowly, which usually means you’re spending a lot of money.
For this reason, mediation services may be a cheaper, better option than collaborative divorce.