Neither mediation nor collaboration is necessarily going to be the best—or worst— choice in all cases. Which approach to use is determined by the unique circumstances of your case, your individual preferences, and the availability of good mediators or collaborative attorneys. Here are the most common factors that may influence your choice.
The key features of mediation are:
The important features of collaborative divorce are:
If you need the guidance of an attorney looking out for your interests every step of the way, you might find collaborative divorce a better option. For example, your case might involve some complicated legal or financial issues that you don’t feel competent to negotiate. Or you may just be more comfortable with the idea of having a professional to confer with at every turn. In collaborative divorce, the two attorneys guide every aspect of the case, so this approach would address your need for representation throughout the process.
If there are long-standing dynamics in your relationship with your spouse that leave one or both of you feeling at a distinct disadvantage in conversations about difficult subjects, you might want the added insulation and structure provided by collaborative divorce. Having a good collaborative attorney at your elbow can sometimes give you more confidence in expressing what’s important to you, even in the face of your spouse’s disapproval. Or if you know you have a tendency to “take over” in conversations with your spouse, you might find it helpful to have a supportive attorney there to nudge you into respectful silence when necessary.
The primary downside to collaboration is that if it doesn’t work, your collaborative lawyer is required to withdraw, and you have to start all over with a new lawyer and possibly new experts and advisers. This means a lot of expense and delay while you get your new lawyer up to speed and retain new professionals. Some lawyers are critical of collaborative divorce for this reason. In addition, some lawyers argue that collaborative law blurs the role of your attorney, who is expected to look for compromises and solutions acceptable to the other side while at the same time representing your interests. Of course, this criticism ignores the fact that if you have chosen to collaborate, you have decided that it is in your interests to find mutually acceptable solutions. Another argument that can be made against collaboration is that because lawyers are more involved in the negotiating process than they generally are in mediation, you may be less likely to arrive at creative solutions —solutions that are outside what the law might prescribe (for example, trading payments for education or job-training now for a shorter period paying alimony in the future). One of the strengths of a nonadversarial process is that the law is only a guidepost, not a prescription, and you are free to decide what actually will work for you. The more lawyers are involved in the process, the argument goes, the less outside-the-box thinking will be applied.
Finally, as in the case of an unsuccessful mediation, there is some risk that a case can become very adversarial if collaboration fails, because there can be a tendency to give up on ever reaching a reasonable settlement. A solution to this problem is to spend time developing an “exit plan” if it looks like collaboration is not working. However, this may not always be possible.
Mediation is potentially more flexible than collaboration. For starters, you need only three participants for mediation to take place: you, your spouse, and the mediator. There’s nothing to stop you from adding other people to the process if and when you need them, but you’re not required to have attorneys—or other professionals—actively involved in the process.
Mediation is also likely to be more flexible than collaboration when it comes to the procedures you will follow. Most collaborative attorneys belong to a collaborative group with its own “protocols”—or rules—that will apply to cases handled by members of the group. This can be a good thing, because it minimizes the possibility of miscues between the professionals. But the trade-off is that you may have less input than you would like in how and when things happen in the case. This won’t happen in mediation, where you work directly with the mediator on deciding both the process and the substance of your case.
Mediation is potentially more efficient and cost-effective than collaboration. Just from a logistical standpoint, coordinating the calendars of four or more people, at least two of whom are busy professionals, is a time-consuming endeavor, one that can add to the cost of the process. In addition, the active participation of two attorneys, and possibly other professionals, makes the cost almost certain to be higher than a mediation in which the two spouses meet alone with the mediator, even if they consult with lawyers and other experts from time to time.
A few states have laws in place to protect the confidentiality of statements made during a mediation. No such laws have yet been enacted to protect the confidentiality of collaboration. You do share attorney-client confidentiality with your own collaborative lawyer, but the four-way meetings are not considered “confidential” settlement discussions, and the laws protecting settlement discussions are far from absolute. While you can—and should—sign a confidentiality agreement if you choose collaborative divorce, the enforceability of such an agreement may be subject to exceptions. If confidentiality is important to you, and if you are in a state with strong laws protecting mediation confidentiality, you might be better off mediating.
If you aren’t able to reach a settlement through mediation, you may have to start over, and you will have “lost” the money you spent on the mediation process. In some cases, your consulting lawyer might not be a litigator, forcing you to start over with a new lawyer for the contested case that could be your next step. (If you are concerned that mediation might not work, you should be sure you hire a consulting attorney who can go the distance with you.)
In addition, if mediation doesn’t result in an agreement, there is a temptation to completely abandon the idea of coming to a mutually acceptable settlement. If so, your case could become highly contentious. These downsides are fairly minimal, though, because the cost of mediation is generally so reasonable. Also, you may be able to shift over to a collaborative process or another nonadversarial process rather than going into all-out litigation.
Adapted from Divorce Without Court: A Guide to Mediation and Collaborative Divorce, by Katherine E. Stoner.