Mediation vs. Collaboration: Factors to Consider in Choosing the Right Approach for You
How to decide whether mediation or collaborative divorce is right for you.
This article will discuss how collaborative law and mediation can help in different situations and what you need to consider when deciding which process works best for your situation.
In my experience, when clients come in with an accepted offer from their spouse to mediate, they choose mediation. We turn to collaborative law when they want the divorce, but their spouse is unwilling or ready to negotiate. While both processes help in similar ways (providing a safe environment and having skilled professionals supporting the couple), each has unique characteristics that make it attractive depending on one's goals and needs. Here are some pointers:
Mediation is typically chosen by couples looking for a solution to continuing their relationship on a more even level after the divorce.
In mediation, both parties sit at a table in separate rooms with a mediator and negotiate a mutually acceptable agreement. It is called "mediation" because each party comes to the table willing to negotiate and work toward a solution based on their interests and what they want out of the agreement. In this process, one or both parties often have attorneys there to guide them through the negotiation process but not to advocate for them outright. Attorneys are advisors only, suggesting options and discussing the legal implications of various courses of action that may come up throughout negotiations.
Mediation can be less costly than collaborative law depending on the mediator chosen. For example, mediators charge $150 - $300 an hour, and there is no retainer or other fee required to start mediation.
Collaborative law is typically chosen by couples who are not necessarily looking for a solution to continue their relationship but want to move past the conflict of divorce to part on good terms with each other. Since this process involves legal representation, collaborative professionals can help guide you through the negotiation process without having to advocate for you outright, as an attorney would do. That way, if something comes up about your agreement that isn't legally sound, your attorneys (not the attorneys representing your spouse) will point it out so it can be fixed before final signatures are made. But, of course, you still get the same kind of expert advice and representation that you would in a traditional divorce case, just without having to go through the adversarial nature of litigation. While mediation is best for couples looking to collaborate on an agreement with their spouse after choosing not to get divorced, collaborative law is best for those who want to avoid spending money on attorneys or going through litigation entirely.
Another factor to consider when choosing between mediation vs. collaborative law is emotionally and emotionally right now as individuals and as a couple. Sometimes it makes sense for one party (or even both parties) to use one process over another depending on how they feel about each other or specific issues that come up during negotiations within the process. For example, if someone comes into mediation thinking, "I want to end this marriage/relationship as soon as possible," they may become impatient with the process and feel like it isn't going anywhere. In that case, mediation may not be the best process for them because they will probably have an emotional reaction to how things are being handled by their spouse during negotiations. Another client might come in thinking, "I don't ever want to speak to my spouse again!" In which case, collaborative law would be a better choice since you wouldn't have to communicate at all unless you were assigning your rights or responsibilities under an agreement.
In my experience, people typically choose mediation because of the fewer attorneys involved and equal footing between spouses during negotiations. The problem is, if one party realizes how little power they have in the negotiation process, they can become resentful of their spouse for making less money or generally being more willing to compromise.
Here's an example of how that might work: if one party is making more money than the other, it only makes sense that they are bringing more financial resources to the table. That means they have more power in negotiations because they have more to lose by fighting with their spouse over every little detail of a deal. But, on the other hand, if one person has significantly more power in negotiations than the other, one party may feel coerced into signing an agreement simply because it's not worth fighting with their spouse if all they have to use is their word against theirs without any witnesses or documentation of what was said. Moreover, since mediation involves attorneys at the negotiation table, it's essential for everyone involved to know who is more powerful in the negotiations and how that could influence their spouse's performance during mediation sessions.
Collaborative law can also work well for blended family dynamics since it's not an adversarial process like traditional litigation. With collaborative law, everyone at the negotiation table has equal power to develop a plan that works for everyone involved, including children of divorce or new spouses. This means parents are more likely to address issues involving kids directly rather than splitting the child(ren) between two households after they split up. Collaborative law gives you the flexibility to work out issues on your own time while still having someone on your side of the table helping make sure you're considering everything that could affect your children and how to best represent them in any decisions made while you're divorcing.
When it comes to choosing a divorce process, the only thing you need to know is whether you prefer having more power and control of negotiations or not. So, for example, if you want everyone on your side of the table fighting for your interests and equal footing when working out deals with your spouse, then mediation is probably right for you. However, if you're willing to compromise an extra 5% just because someone is "holding all the cards," there's nothing wrong with collaborative law either. The idea behind both processes is that they let dissenting parties come up with a settlement themselves without going through traditional litigation, where they wind up splitting the difference between what they want and what a judge wants to give them. So if you appreciate the flexibility of coming up with your unique divorce agreement while having someone on your side throughout the process, then collaborative law may be best for you.