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 offer possible solutions to the couple’s issues only 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 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. In addition, the parties work with divorce coaches, who are mental health professionals; a financial specialist, who is trained in divorce financial management; and, when there are children of the marriage, a child specialist. 

It is not surprising that a collaborative divorce, while less expensive than an adversarial divorce, is more expensive than a mediated divorce. There are five or six professionals involved in collaborative divorce, as compared with one mediator or mediation team, and the collaborative divorce process is more complex and time-consuming.

So why would a couple considering mediation choose collaborative divorce instead? The answer is that they generally would not. A couple that can mediate would not generally choose collaborative divorce. It is the couple who cannot mediate, but does not want an adversarial divorce, who would choose collaborative divorce. Collaborative divorce is really a second alternative to an adversarial divorce, not an alternative to mediation. The two processes are not competing for the same clients.

That is not to say that there are not meaningful differences between mediation and collaborative divorce that a couple might consider. The contributions of the financial specialist, the child specialist, and the divorce coaches are real and meaningful. At the end of the day, a couple that chooses collaborative divorce, rather than mediation, might make better-informed decisions regarding their finances and their children. One might argue, however, that the same might be accomplished less expensively through a mediated divorce integrating the services of financial advisors, mental health professionals, and child specialists on an as-needed basis.

The real difference between the two divorce methods is whether each party is represented by an attorney or advocates on his or her own behalf. Collaborative divorce is an excellent alternative for the person who is not comfortable divorcing without being represented by counsel. Sometimes a person is truly not capable of being his own advocate because of his experience or because an imbalance of power exists between the husband and wife. A party who is impaired by substance abuse or has been battered by a spouse will often have difficulty being a successful advocate. In other cases, a person may simply not be comfortable with the idea of making the life-altering decisions that must be made in divorce without the advice of counsel every step of the way. 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 wish to be represented by an attorney, and mediation for those who do not.