Most people who have been through an adversarial divorce will tell you the experience was emotionally wrenching and prohibitively expensive. They will also probably tell you that the lawyers contributed to these problems by heightening conflict and escalating arguments over the placement of children, payment of support and division of property, all the while charging substantial legal fees.

Divorcing families are in crisis. Unfortunately, the legal process seeks to resolve that crisis in an adversarial manner that most often intensifies conflict. Many divorce lawyers perceive their role as "winning" for the client, which is usually defined as obtaining the most time with and power to make decisions regarding children, as well as the lion's share of marital assets. Before long, clients find themselves in the middle of a war, facing frightening one-sided accusations as well as expensive and time consuming discovery requests. Sometimes the two are combined in the form of pre-trial depositions, in which the client is grilled, often for hours at a time, by the opposing attorney. Depositions, which are taken under oath and in advance of trial, necessitate paying one's own attorney to be present even when you're the one being interrogated. The process can leave spouses embittered and bankrupt, while the damage inflicted upon children is often immeasurable.

To the extent negotiations occur, they are typically contentious, attorney-driven and occur on the brink of trial. If negotiations fail, the parties must bring their case before a judge, a stranger who knows neither spouse nor the children. When the dust settles, the most valuable assets of all, such as the ability to parent children cooperatively, have often been decimated. Spouses who might have been able to work together before the divorce became adversarial will now have difficulty looking at each other, let alone speaking. Where once there was the possibility of mutual respect in the context of a joint-parenting relationship, now there is nothing but scorched earth and deeply seated resentment.

In a nutshell, divorce litigation does little to solve, and often perpetuates and intensifies conflict. Fortunately, there are alternatives. One of these is called Collaborative Divorce. In Collaborative Divorce, the spouses agree to work together to reach agreements on custody, visitation and financial issues in a manner that meets the needs of all family members, including the children. The parties and their respective attorneys agree, in writing, that they will not take the case to court. In the event the parties do not succeed in settling their differences, both lawyers must withdraw from further representation of these clients. This collaborative agreement has the effect of placing everyone on the same team, since the spouses don't want to incur the cost and hassle of starting over and the attorneys don't want to fail their clients.

The parties must hire attorneys who have received specialized training in collaborative law. Collaborative attorneys act as legal advisors, negotiation facilitators and problem solvers rather than adversarial combatants. The entire collaborative process is designed to provide emotional safety for spouses and their children.

The parties and the lawyers meet in a series of four-way settlement conferences. Other professionals, such as psychologists and financial advisors, may be employed as well. These professionals are jointly chosen to provide input rather than take sides. This input can be invaluable in helping to achieve win-win results, allowing the spouses and children to feel safe, and encouraging the divorce process to flow smoothly.

Collaborative Divorce is less emotionally painful, often less expensive, and produces far higher satisfaction levels than conventional divorce. Unlike litigation, in which the parties are encouraged to focus narrowly on tangible assets, such as home equity, bank accounts, pension plans and the like, the collaborative approach encourages spouses to also consider the value of intangible assets, such as good will and the ability to parent cooperatively. As a result, they are more likely to recognize, value and build upon these common interests.

Working together in this way, once the terms of a settlement have been reached, each spouse feels fully vested in the agreement. As a result, they are unlikely to ever need the court to enforce or modify the terms of the divorce. Since the parties feel good about themselves and each other, they are well positioned to work together in all aspects of raising their children, including those over which the court lacks jurisdiction, such as sharing discretionary costs (e.g. summer camp, swim lessons, car expenses and college tuition).

Mediation and Collaborative Divorce Compared

Many of the principles discussed above apply to Mediation as well. The main differences are that in mediation, a neutral third party guides spouses through negotiations. If the spouses have attorneys, they provide legal advice and draft documents but are generally in the background during mediated negotiations.

Some spouses feel more comfortable with the collaborative approach because it provides the added support of a lawyer for each party who can advise and protect his or her client and also prepare and review legal documents (whereas mediators cannot perform these functions). In addition, the input of other skilled professionals, such as therapists and financial planners, can be extremely valuable. However, Mediation may be more cost effective.

In my experience, Collaborative Divorce, with its ability to seamlessly bring the support of attorneys, therapists and financial planners inside the divorce process, produces the very best long term results. Since parents will be connected for the rest of their lives – through graduations, weddings and grandchildren – achieving the optimal settlement yields dividends that justify any additional expense that may be incurred.

For some, however, the added benefits of Collaborative Divorce may be superfluous. At times, even Mediation is unnecessary since some couples can negotiate quality settlements on their own. However, beware that when negotiating on your own, it's all too common for fears to arise and escalate, causing even the most amicable cases to fall apart. Working with professionals, such as mediators and collaborative attorneys who are trained to create and facilitate an emotionally safe environment, divorcing spouses are far more likely to reach productive, high quality settlements.

But no matter the method employed to reach settlement, I strongly recommend each spouse consult with an attorney before signing any agreement. I also recommend having a qualified domestic relations attorney draft all final documents, such as the Marital Settlement Agreement, Decree of Dissolution, any Qualified Domestic Relations Orders, Child Support Orders and Wage Assignments. All too often, a former spouse comes to me for help fixing a Decree of Dissolution or other court order that didn't properly reflect the terms of the agreement he or she thought had been reached. Once formal orders have been entered, it is likely to prove difficult or impossible to fix these problems, and any repairs will certainly be more expensive than having had the documents correctly drafted the first time.

Even when documents are professionally prepared, the financial and emotional costs of a mediated or collaborated divorce are likely to be substantially less than those of a traditionally litigated divorce, and the benefits of these approaches are immeasurable. When people retain control over the final settlement by negotiating its terms, they feel a sense of satisfaction and ownership over those terms. Even if they've had to make difficult concessions, they've chosen where to give and where to hold firm. As a result, spouses who employ Mediation or Collaborative Divorce almost never find themselves in court to enforce or modify the terms of their agreement.

In my experience, spouses who negotiate win-win settlements feel good about themselves and each other. As a result, they are well positioned to share parental responsibilities, and to fully participate – even after the children are grown – in graduations, weddings and the lives of grandchildren. The children have been protected from the contentiousness of adversarial divorce, which can otherwise leave lifelong scars. And such positive approaches typically take less time and cost less money than full blown litigation.

Both Mediation and Collaborative Divorce can also be used if issues arise after the divorce is final, regardless of whether the original case was negotiated or litigated.