When you are considering your options for ending your marriage with respect and dignity, all the terms around divorce can get confusing. If you know you and your spouse are committed to keeping things friendly, you may want to consider mediation or collaborative divorce. But what is the difference between the two? How do you know which one is best for your situation?
This blog post will compare formal and informal mediation to the collaborative divorce process. It will explain the pros and cons to each strategy, and explain how having a skilled divorce professional trained in both can help you get the best resolution for your family.
Divorce can get ugly. The heightened stress of dividing up property, assets, and parenting responsibility, along with the grief of a marriage lost, will put anyone’s emotions on edge and make it easy for communication to become strained. Traditional divorce litigation increases that stress. It pits husband against wife (or spouse against spouse) in the Plaintiff vs Defendant framework, forcing each side to cut each other down to make their own best case. That process can erode an already fractured relationship and push parties further apart.
When there are children involved, or when parties hope to stay friends, all that extra stress can create animosity that will take years to overcome. That’s why many couples decide to use different processes that keep things civil, emphasizing resolution over litigation, and peace over getting what you “deserve.”
Two ways to do that are through mediation and collaborative divorce. These alternative dispute resolution (ADR) strategies are each designed to help the parties reach a resolution together that the whole family can live with. Each type of ADR has its own positive and negative aspects. Picking the right one will depend on your needs and your circumstances. A family law professional trained in both strategies can help you weigh your options and make an informed choice.
Mediation is a process where a neutral third party (the mediator) sits down with the parties to help them discuss and resolve their issues. Mediation can be a great option for people facing divorce because it lets the parties control their own destiny and work through all the details of things like parenting time exchanges and dividing up property at their own pace. It can be adapted to address whatever family disputes may arise, before or after the Judgment of Divorce is entered.
Mediation can be formal or informal, and it can happen within the traditional divorce system, or as a supplement to it. That means that even if you didn’t know your spouse was planning to file for divorce, you can still use mediation to bring the matter to a peaceful resolution. It can also be less expensive than traditional litigation, and can resolve the matter more quickly. In some cases, parties agree to mediate before even filing the complaint, streamlining the process so they can be divorced as soon as possible.
In mediation, the parties and their attorneys (if they have them) meet together with a trained mediator who facilitates discussion over disputed issues. It can be court-ordered or simply arranged by the parties directly. The mediator helps to keep the conversation on-target and helps the parties come up with solutions to best resolve the conflict. When mediation is successful, the mediator will put together a written contract or settlement agreement. The parties can use that agreement to get a judgment of divorce entered and resolve their marriage without the time, expense, or embarrassment of trial.
However, mediation isn’t right for everyone. It may be inappropriate when there is a significant imbalance of power between spouses (especially in cases of domestic violence), or when the parties are not able to communicate even through third parties. Mediation also works with whatever information the parties bring to the table, so if there are gaps in what the parties know, the agreement they reach may sometimes lead to unexpected results. Because mediation focuses on the issue at hand, it also leaves parties much as it finds them, without strategies or plans to resolve future conflicts.
Collaborative divorce takes a slightly different approach. It is an alternative to the traditional divorce structure that does its best to allow parties to work together to resolve their differences, rather than working against each other. As the parties collaborate to a mutually desired end, they work with a team of professionals who can help them explore options, weigh the benefits and costs of their choices, and teach them strategies to resolve future disputes. Depending on the family this could include:
Unlike in mediation, the goal in collaborative divorce isn’t just to reach a settlement agreement. It is also designed to anticipate the future needs of the parties. Coaches, attorneys, and family specialists train the couple in conflict resolution strategies that will keep them from coming back to court in the future. Financial planners, realtors, and other professionals provide forward-facing advice on not just what is fair, but what is best for the parties now and in the years to come. The entire process recognizes that while a divorce happens at a particular point in time, the family relationships that formed it will continue on after the judgment is entered.
However, just like mediation, there are some limits to when collaborative divorce will work. Parties with fewer assets may prefer a less labor-intensive option. (However, the training received in collaborative divorce can avoid costly trips back to court after the judgment is entered.) Collaborative divorce also only works when both parties are committed to the process. If one or both spouses have mental health issues or other challenges that make them less receptive to cooperation and coaching, the collaborative process can fail and the parties may be left needing to use the traditional adversarial process instead. But, often, the collaborative process can be adopted to meet the needs of most clients.
There is no one right answer for every family’s divorce. Comparing mediation vs collaborative divorce options is something that should be done with the help of an experienced divorce professional trained in both. Kimberly Miller has training and certifications in both mediation and the collaborative process. She is happy to explain the different options to you and help you assess which strategy will work for you and your spouse. Contact KM Family Law today to schedule a free consultation to learn more.