How Collaborative Divorce Is Different From Divorce Mediation

When a couple decides to divorce, the spouses have important choices to make about how to proceed and the extent to which they will need help from others — including lawyers, mediators, and other professionals. Some couples choose to file for divorce in court and go on to lengthy, high-conflict divorce litigation. Others choose an alternative. In New Jersey, divorcing couples who choose not to go to court have two options: divorce mediation and collaborative divorce.

Both divorce mediation and collaborative divorce are excellent methods which many couples use to divorce, with high success rates. However, I find that potential divorce clients usually don’t understand what the two options are and how divorcing through mediation differs from divorcing collaboratively. This blog post explains the two alternative divorce methods and compares the differences between the two methods.

Divorce mediation is a process in which divorcing spouses try to negotiate an acceptable divorce agreement with the help of a neutral third party: the mediator. The mediator helps the spouses to communicate and negotiate but doesn’t make any decisions for them. Importantly, the mediator does not represent either spouse, even if the mediator is an attorney. Collaborative divorce is a process in which the couple negotiates an acceptable agreement with some professional help. Each spouse hires a specially-trained collaborative attorney who advises and assists them in negotiating a settlement agreement. Both spouses and their attorneys sign a “no court” participation agreement, requiring the attorneys to withdraw from the case if a settlement is not reached and the case goes to court. Thereafter, each spouse may meet separately with his or her own attorney as needed. In addition, each spouse and his or her attorney meets regularly with the other spouse and attorney in “four-way” meetings in which the settlement agreement is negotiated. A collaborative divorce may also involve a team of other professionals, such as child custody specialists or neutral accountants.

Here are some important differences between collaborative divorce and divorce mediation:

Collaborative Divorce

  • Each spouse has his or her own specially-trained collaborative lawyer as an advisor and counselor, helping the client sort out and express concerns and priorities during the collaborative process before helping the client reach an agreement.
  • Separate legal representation is built into the collaborative process. The negotiations are guided by collaborative lawyers whose job is to help the divorcing couple reach fully informed resolution of the issues in the divorce. Either spouse can terminate the process and go to court at any time, but if that occurs the divorcing couple must retain new lawyers because the collaborative lawyers may not participate in court litigation. 100% of the effort of collaborative lawyers is devoted to settlement.
  • The divorcing couple has a trained collaborative divorce coach, who is a licensed counselor or psychologist, to teach the spouses how to communicate better during the divorce process in order to be a more effective participant in the negotiations.
  • A child development specialist (a licensed mental health clinician) who has been trained in the collaborative process helps the spouses understand their child’s needs during and after the divorce and helps the child understand and communicate with the parents about the divorce.
  • A financial consultant helps the spouses to understand the family finances, prepares financial spreadsheets for use during the process, and advises the spouses about financial and tax aspects of settlement options.
  • As a result of the team approach and participation of mental health professionals, child specialists, financial professionals and lawyers, collaborative divorce usually costs more than divorce mediation, although the cost is much less than the cost of a divorce litigated in court.

Divorce Mediation

  • One neutral mediator, working with the divorcing couple, helps the couple reach an agreement.
  • Each spouse gets his or her advice during the mediation from independent lawyers who usually do not attend the mediation sessions. However, there is no requirement that the spouses retain counsel, and many divorcing couples negotiate in the mediation without lawyers. If lawyers have been retained, the lawyers may file a lawsuit for divorce in court if mediation is not successful.
  • In the usual mediation, the mediator helps the couple by facilitating negotiations between the spouses, but neither spouse retains a divorce coach.
  • Either spouse may retain an independent child specialist to work with the children, but the child specialist usually does not participate in the mediation. As long as the spouses reach agreement about parenting time, there is no requirement that a child specialist assist the children in understanding and accepting their parents’ divorce.
  • Mediators do not typically bring financial experts into the mediation. Unless requested, mediators do not teach financial skills or evaluate the financial consequences of various settlement options.
  • In the typical case, mediation is the lowest cost alternative for divorcing couples.