What Is the Difference Between Mediation and Collaborative Divorce?

Couple Before Divorce At PsychotherapyGenerally, when people think about “divorce,” nasty images come to mind. Bitter custody battles, financial disputes, “broken families,” and court feuds cast a dark pall, and for good reason. That’s why less contentious alternatives to traditional divorce like mediation and collaborative divorce are gaining popularity nationally. But just like a divorcing couple must choose to pursue a litigated divorce, a couple who pursues an alternative method must know the differences between those methods. Collaborative divorce is different from mediated divorce and different couples should choose the method that best fits their family’s needs.

Mediation, the more well-known litigated divorce alternative, a divorcing couple uses a “mediator” to help them resolve conflict as peacefully as possible separate from each individual party consulting their own attorneys. This mediator is an entirely impartial individual who facilitates communication, negotiation and good listening. He or she cannot offer legal advice within the context of the mediation session.

Mediation is generally less expensive than litigated divorce, easier emotionally on the whole family, faster and more private than a litigated divorce. In an ideal divorce mediation scenario, the work done in mediation sessions allows both parties (and their attorneys) to come to a more desirable settlement more quickly and with fewer resentments on both sides.

That said, mediation is not fool-proof. If there is an existing power imbalance within the divorcing couple’s relationship, it may be exacerbated during the mediation process—possibly leading to further emotional damage and a poorly weighted compromise. Additionally, since the mediator as a neutral entity cannot give legal advice (even if he or she is an attorney), some couples may get lost in the legal process, especially in situations where finances or blended family issues are complex.

Collaborative Divorce, on the other hand, is a divorce method in which both parties and their respective attorneys come to an official “Participation Agreement,” that commits all involved to reaching a settlement without litigation. If conflict cannot be resolved outside of court, both attorneys pledge to withdraw from the case.

Collaborative divorce is a cross between traditional divorce and mediation, as the attorneys are integral to the conflict resolution and negotiation process. The use of family professionals like licensed therapists and financial planners who specialize in divorce is encouraged, as the ultimate goal of a collaborative divorce is to get the best possible results for everyone involved in a creative, non-adversarial manner. In cases where children are involved, collaborative law dictates that the child(ren)’s best interests are made priority and that emotional damage is minimized by promoting positive relationships and a healthy co-parenting plan.

By acknowledging that divorce is by nature a personal challenge with legal implications and not the other way around, collaborative law applies creative problem-solving and the use of outside expert knowledge (through therapy and financial counseling, for example) to time-honored legal and business principles. Through the Participation Agreement, both parties and their attorneys pledge to cooperate and work toward a positive settlement. Whereas divorce mediation occurs separately and distinctly from the legal settlement, the collaborative divorce process incorporates the best of both worlds. Experienced legal counsel can guide divorcing couples to a settlement that works for all parties and keeps everyone accountable.

Virginia Beach Law Group family law attorney Anna Clarke Sas focuses much of her practice on collaborative divorce. If you think that collaborative law may be the solution for your divorce case, contact us today to speak to Anna and begin the journey toward a less stressful, more cooperative divorce.

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