Does the thought of filing for divorce and going to court churn your stomach?
You’d be happy to know you have options.
Two of the most common alternatives are divorce mediation and collaborative divorce. They help to divorce couples work their separation amicably while staying out of court.
While mediation and collaborative divorce are similarly non-litigious, there are distinctions between them.
This article explores these two options, examines their differences, and sees their benefits.
What Is Divorce Mediation: An Overview
There is divorce mediation for divorcing couples looking to resolve their issues amicably.
Divorce mediation is an alternative dispute resolution approach. Here, a neutral third party guides the spouses in addressing disputes relating to property distribution, debt ownership, child custody, and support.
Divorce mediation is an excellent option for spouses looking to avoid lengthy and costly legal action.
What Is Collaborative Divorce: An Overview
In 2012, the Ohio Collaborative Family Law Act came into effect. This law specifies how collaborative divorces should be performed.
Under a collaborative divorce, both spouses agree to collaborate and work on their issues; hence, the name. These issues include property division, child custody, and support—similar to the matters submitted to divorce mediation.
A collaborative divorce is an excellent option for spouses looking to avoid litigation. It also ensures each spouse’s willingness to participate in the negotiation and work together toward a compromise.
Let’s Explore the Distinctions Between Divorce Mediation and Collaborative Divorce
Many divorcing couples are looking for ways to settle their issues and dissolve their marriage efficiently, amicably, and affordability.
But divorce can get contentious and messy by not contemplating issues on property, children, and boundaries.
Separating spouses can benefit from these two helpful options to avoid this difficult predicament.
Divorce mediation and collaborative divorce are similar in that both provide for a fair, amicable, and reasonable settlement of disputes.
But while they share similarities, they also have distinctions as to their pros and cons.
Benefits and Drawbacks of Divorce Mediation
One of the commonly recognized benefits of divorce mediation is control.
It allows the parties to control the outcome of their marriage dissolution.
Divorce mediation gives the parties the power to determine how to divide their commonly owned properties and debts. They can also decide who gets custody of their children. Lastly, they can agree on the giving of child and spousal support.
Divorce mediation is more efficient and quicker than traditional divorce litigation. As a result, it becomes less expensive than going to court for a full-blown trial.
On the other hand, divorce mediation has potential drawbacks.
Admittedly, this out-of-court process has its limitations. For one, it requires a great deal of cooperation from both parties. So if one or both are reluctant, even on a communication level, this approach will not work.
This is why divorce mediation will not likely work for divorcing spouses with a high level of conflict. This process is not ideal where there is a history of domestic abuse or physical violence.
Should divorce mediation break down, the spouses have no other recourse than to go to court to pursue the dissolution of their marriage. Here, it becomes costly and time-consuming.
Benefits and Drawbacks of Collaborative Divorce
Similar to divorce mediation, collaborative divorce gives the spouses control over the outcome of their marriage dissolution.
Collaborative divorce is also quicker and less expensive than traditional divorce litigation.
In addition, the spouses are likely to maintain a cordial relationship because of their collaborative effort to secure an amicable settlement.
Collaborative divorce also shares similar drawbacks as divorce mediation.
First, this alternative dispute resolution approach is not ideal for couples with a history of domestic or physical abuse.
Under an atmosphere of high-level conflict, one spouse cannot expect communication and cooperation from the other. That spells a breakdown, making this option impossible for these couples.
Distinctions Between Divorce Mediation and Collaborative Divorce
Perhaps the significant distinctions between divorce mediation and collaborative divorce are the following:
Entering into a collaborative agreement in collaborative divorce
Unlike divorce mediation, the spouses must enter a collaborative agreement before starting the collaborative divorce process.
A collaborative agreement is a legally binding contract that binds the parties to engage in a collaborative process throughout the alternative dispute resolution.
This contract also restricts the scope of representation of each spouse’s attorney.
Their attorneys must withdraw from the case if the collaborative divorce proves unsuccessful.
Entering into a participation agreement in divorce mediation
On the other hand, parties must sign a participation agreement before the start of their divorce mediation.
This legal document states that spouses are willing to try to reach an amicable resolution of their issues through divorce mediation.
After the spouses sign the participation agreement, the divorce mediator will also sign it. This will mark the commencement of their divorce mediation.
The spouses will meet with their divorce mediator as part of their obligations under the participation agreement. They will discuss with the latter the terms of their property division, child custody arrangements, and provisions for support.
Once the spouses reach an agreement, they will outline all the terms of their divorce in a contract, sign it, and submit it to the court. If the court approves it, their divorce becomes final and binding.
Some couples reach an agreement in as little as one session. This is why divorce mediation is a preferred approach. It is quick, efficient, and less expensive compared to traditional litigation.
Both parties’ attorneys have limited participation in collaborative divorce
While the parties can still secure legal representation, their attorneys cannot participate in collaborative divorce.
As part of the parties’ commitment in their collaborative agreement, their attorneys will not litigate. Instead, they will work on finding a resolution to the spouses’ issues. For this reason, the attorneys will sign an agreement to that effect.
Although they cannot litigate, the attorneys can still provide legal advice to the party they represent. They can also assist in negotiating to get the most one party can get without being contentious.
Divorce mediation typically involves only three people
The only people on the divorce mediation table are the spouses and the mediator.
While the spouses work out the terms of their agreement, the divorce mediator acts as a neutral guide. The latter asks questions regarding property division, the calculation of child or spousal support, or the splitting of debts.
So divorce mediation may not be an ideal recourse if the spouses cannot adequately communicate their concerns or interests. They may resort to a collaborative divorce if they need legal representation during the negotiation process.
Collaborative divorce involves more people
In a typical collaborative divorce session, around four to seven people sit at the discussion table.
These include the mediator and the parties’ respective attorneys. The mediator could also allow a child specialist and a financial specialist to join if the need arises. If all of them are present, that’s seven people.
In a collaborative divorce session, the mediator acts as a neutral coordinator. They will ask questions that will kickstart the negotiations. In the same way, the mediator will enforce the ground rules to ensure a civil and orderly discourse.
The mediator may admit a child specialist to join the session where child custody is the issue.
Similarly, the mediator may call upon a financial specialist to help the spouses regarding the equitable distribution of their assets.
Typically, collaborative divorce is not cheap
Because attorneys are present in each meeting, collaborative divorce is costly.
In addition, the parties may also require the services of a child specialist or a financial specialist. Obtaining their services and having them join the meeting will mean another expense for the spouses.
Nonetheless, collaborative divorce is cheaper than litigation.
Typically, divorce cases in court can go on for months or years. This means the parties will pay for legal representation throughout the litigation.
In a collaborative divorce, the parties can set the pace of the sessions. If all goes well in one session, they could finalize their agreement.
There are even instances where collaborative divorce cases finish faster than divorce mediation because there are attorneys who can help push the process.
However, given the number of professionals attending each session, collaborative divorce is typically more expensive than divorce mediation.
Ending a marriage is devastating.
Imagine people investing time and emotion in their marriage only to see it fall apart and then go on their separate ways.
It is never easy for a person to experience this, much more for children going through the same turmoil.
People are splitting up their homes, finances, and families. Then there is the toll of litigation.
Indeed, divorce is difficult.
This is why many divorcing couples resort to alternative modes of dispute resolution.
One is divorce mediation; the other is collaborative divorce.
These two alternative dispute resolution approaches are excellent options for divorcing couples looking to seal the deal without going to court.
Divorce mediation affords a cheaper and more efficient recourse for the parties to settle their issues regarding their assets and children.
On the other hand, if divorce mediation is not a good fit, spouses can resort to collaborative divorce.
In both instances, willingness to cooperate and to negotiate in good faith are keys to an expedited out-of-court process.
Reaching a mutually agreeable settlement requires communication and compromise, especially on highly contested matters.