Collaborative Divorce vs. Mediation: What’s The Difference?

When couples decide to divorce, it’s important to consider the best method for resolving any disputes that may arise. 

While traditional divorce and litigation are still options, many couples today opt for alternative methods such as collaborative divorce and mediation. 

In general, if you and your spouse are close to reaching a settlement on all issues, I recommend starting with mediation. A collaborative divorce is an excellent option if you are just beginning your divorce and need help starting a conversation about resolving your disputes.

In this article, we’ll explore the pros and cons of each so you can decide which is the right choice for you.

What is Collaborative Divorce?

Collaborative divorce is a process in which both parties agree to work together with their respective lawyers to reach a mutually beneficial divorce settlement agreement. 

Unlike traditional litigation, there is no judge involved in the process. The couple agrees to disclose all relevant financial information and work together in good faith to reach a settlement. 

Collaborative divorce aims to reach a settlement that benefits both parties and their children without needing a court battle.

What are The Pros of Collaborative Divorce?

  • Reduced conflict: Collaborative divorce is designed to minimize conflict and encourage cooperation between both parties.

  • Lower costs: Since collaborative divorce avoids litigation, it is often less expensive than traditional divorce.

  • Faster process: Collaborative divorce can be completed more quickly than traditional divorce, which can take months or even years to finalize.

  • More control: Collaborative divorce allows both parties to have more control over the outcome of their divorce rather than leaving it in the hands of a judge.

  • Better for children: Collaborative divorce is often less stressful for children since it avoids the contentious court battles that can be traumatizing for them.

  • Privacy:  The meetings during the collaborative process generally occur at one of the collaborative attorney’s offices, allowing the individuals involved to maintain their privacy. Due to the lack of resolution in a courtroom, the parties can maintain their privacy. The parties decide what goes into the paperwork, which becomes a public record.

What are The Cons of Collaborative Divorce?

  • Not suitable for all couples: Collaborative divorce requires a high level of cooperation and trust between the parties. If there is a history of abuse, manipulation, or dishonesty, collaborative divorce may not be appropriate.

  • It can sometimes be more time-consuming: Collaborative divorce requires multiple meetings and negotiations, which can take longer than a traditional litigated divorce. This may not be ideal for couples who want to finalize their divorce quickly.

  • No guarantee the case will settle: Even with the best intentions and efforts, collaborative divorce may not always result in a successful settlement. If the parties cannot reach an agreement, they will need to hire new attorneys and start over with the litigation process.

  • Costs: While collaborative divorce may be less expensive than a traditional litigated divorce, it can still be costly. The fees for attorneys, financial experts, and other professionals can add up. 

  • Either party can quit the process at any time: Collaborative divorce is a voluntary process, which means that if one party decides to leave the process, there may not be any legal recourse or leverage to enforce the agreements reached during the collaborative process. 

What Percentage of Collaborative Divorces End in a Settlement?

The percentage of collaborative divorces that end in settlement can vary depending on the specific context and the definition of “settlement.” 

In general, however, collaborative divorce is designed to facilitate settlement, and most collaborative divorces result in a settlement agreement.

International Academy of Collaborative Professionals collected data on collaborative divorce cases from the professionals engaged in those cases and presented some of their results in the Spring 2012 edition of The Collaborative Review.

From the 16th of October, 2006, until the 6th of July, 2010, a total of 933 divorce cases were reviewed, and they determined that:

 “86% of all reported Collaborative cases settled with an agreement on all issues.”  

These percentages confirm that most collaborative divorce cases will settle.

It’s worth noting that the success of a collaborative divorce also depends on the willingness of both parties to engage in the process and negotiate in good faith. 

In general, collaborative divorce is considered an effective alternative to traditional litigation for couples who can work together to resolve their differences.

What is Mediation? 

Mediation is a process in which a neutral third party, the mediator, works with both parties to facilitate a resolution to any disputes. 

The mediator does not make any decisions but instead helps the couple work together to reach an agreement. Mediation can be used for all aspects of a divorce, including property division, child custody, and support.

What are The Pros of Mediation?

  • Lower cost: Mediation is generally less expensive than traditional litigation since it avoids the need for a lengthy court battle.

  • More control: Like collaborative divorce, mediation allows both parties to have more control over the outcome of their divorce. The couple works together to reach an agreement rather than leaving it in the hands of a judge.

  • More privacy: Mediation is a private process, which means that the divorce details are not made public.

What are The Cons of Mediation?

  • Not always successful: Like collaborative divorce, mediation requires both parties to be committed to the process. It may not be successful if one or both parties are unwilling to work together.

  • May require multiple meetings: Mediation may require numerous meetings before an agreement is reached, which can be time-consuming.

  • No legal advice: Unlike collaborative divorce, mediation does not involve lawyers, which means the couple does not receive legal advice during the process.

What Percentage of Case Settle at Mediation? 

The percentage of divorces that settle at mediation can vary depending on various factors, such as the complexity of the case and the willingness of the parties to compromise and come to an agreement.

Studies have shown that many cases that go to mediation are resolved. For example, according to a report by the American Bar Association, approximately 80-90% of cases that go through mediation are settled. 

However, it is essential to note that not all cases that go to mediation will be successfully resolved, and some may need to proceed to trial.

In my experience, a mediation’s success rate can vary depending on the case’s specific circumstances and the mediator’s skill and experience.

Frequently Asked Questions:

Q: Do I need a lawyer for collaborative divorce or mediation?

A: While it’s not required, it’s generally recommended that each party have their own lawyer to provide legal advice throughout the process.

Q: Is collaborative divorce or mediation faster than traditional litigation?

A: In most cases, yes. Collaborative divorce and mediation can be completed more quickly than a traditional litigated divorce.

Q: Can children be involved in collaborative divorce or mediation?

A: Yes, children can be involved in collaborative divorce or mediation, particularly in child custody and support decisions. Many couples find that these methods are better for their children since they allow the parents to work together to reach a mutually beneficial agreement rather than having a judge decide on their behalf.

Q: What happens if we can’t reach an agreement through collaborative divorce or mediation?

A: If the parties cannot reach an agreement through these methods, then they may need to pursue traditional litigation to resolve their disputes. However, this is typically seen as a last resort, and most couples can successfully resolve their disputes through collaborative divorce or mediation.

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Tim McDuffey is a practicing attorney in the State of Missouri. Tim is a licensed member of the Missouri Bar and Missouri Bar Association.

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