Differences in Collaborative Divorce vs Mediation

Schwartz, Fox & Saltzman, LLC. – Philadelphia Divorce Lawyers

You and your spouse want to work together to resolve the issues arising from your divorce, such as child custody, child support, alimony, and the distribution of marital property, and you’ve heard of the various alternative dispute resolution methods such as collaborative divorce and divorce mediation. Which is right for you?

The Philadelphia divorce mediation lawyers at Schwartz, Fox, & Saltzman have experience in all forms of alternative dispute resolution available to divorcing couples and explain the differences between the collaborative divorce process and divorce mediation in this comprehensive article.

If you and your spouse are considering using some form of alternative dispute resolution in your divorce, call us to discuss which form may be right for you.

What is Divorce Mediation?

Divorce mediation is a form of alternative dispute resolution that allows a couple to sit down with a trained, neutral mediator and negotiate the terms of their divorce. The divorce mediation process is much quicker and less expensive than traditional litigation, and the couple crafts their own solutions rather than let a judge decide what is best for their family.

Reasons To Choose Divorce Mediation

  • Couples learn to communicate and work together – especially valuable for couples who have children and must continue to co-parent them
  • Couples control the process and the schedule
  • Couples decide what is best for their families rather than giving that power and control up to a judge
  • Divorce mediation is less expensive than litigation
  • Divorce mediation resolves issues more quickly than litigation
  • Divorce mediation is less stressful and antagonistic than litigation
  • The results of divorce mediation are private, versus litigation which is a matter of public record

Downsides of a Mediated Divorce

Divorce mediation is not effective or advised for every couple. Some downsides include the following.

1. Power Imbalances Between Couples Often Thwart Mediation

If one spouse is domineering, the other spouse may have difficulty asserting themselves during mediation. An experienced mediator may be able to help them, but a spouse who feels bullied during mediation should probably retain their own attorney to help them.

2. Divorce Mediators Can’t Give Legal Advice

If you are unsure whether the solutions you negotiate during mediation protect your rights, the mediator cannot help you as they are neutral. You can however retain a divorce attorney to review those agreements and explain how they do or do not represent your interests.

3. You Won’t Have Someone Negotiating For You During Mediation

The divorce mediator is a neutral third party trained to help you voice your preferences and negotiate solutions to the issues arising from your divorce. You and you alone are responsible for asserting your preferences during this process. 

4. Divorce Mediation is Inappropriate in Cases of Domestic Violence

Sitting across the table from an abuser will likely cause additional trauma for an abused spouse. If not, at the very least an abused spouse will likely find it difficult to assert their thoughts and feelings during negotiations. An abused spouse may need to speak through their attorney rather than directly to their abuser.

What is a Collaborative Divorce?

Like divorce mediation, the collaborative process provides a less confrontational environment for couples to develop creative solutions to the issues arising from their divorce without the threat, stress, and expense of court. 

In a collaborative divorce, each party retains their own collaborative divorce attorney each of whom are contractually bound to withdraw from representation if the case deadlocks and moves to litigation. They then meet and the attorneys negotiate and work through their issues, often working with other team members such as divorce coaches, therapists, financial neutrals, among others. 

Reasons To Choose a Collaborative Divorce

1. Collaborative Divorce Puts Children First

Spouses who wish to maintain a good relationship following divorce, especially those who have children, choose collaborative divorce to work together on solutions for their families going forward. Divorce attorneys who are well-versed in collaborative law help couples reach creative solutions to child custody and child support disputes.

2. A Collaborative Divorce is Time Efficient

Like divorce mediation, collaborative divorce takes place over a few or several sessions with the parties and their attorneys. This can resolve a divorce in a matter of weeks rather than months, as litigation and the overburdened court docket require.

3. A Collaborative Divorce is Lower Cost Than Litigation

Retaining an attorney to pursue your interests in collaboration with your spouse and their attorney is much less expensive than retaining an attorney to fight your spouse in court. Collaborative divorce is not adversarial and requires no court fees.

4. Each Party Has an Advocate in a Collaborative Divorce 

If there is a power imbalance in the relationship, having an attorney present ensures rights and interests are asserted and protected.

Downsides of a Collaborative Divorce

1. If the Process Doesn’t Work, You May Need to Start Over

If you are unable to come to an agreement during collaborative divorce, you cannot use your collaborative divorce attorney as your divorce attorney in litigation.

2. Spouses Must Work Together

If one spouse wants to punish the other or there is residual anger or resentment, it may not be possible for the parties to come to an agreement even with the presence of attorneys.

Do I Need a Lawyer for a Collaborative or Mediated Divorce? 

For a collaborative divorce, you need your own lawyer. For a mediated divorce, you may need your own lawyer if you are having trouble expressing your preferences or concerns or you want someone to review any agreements made before the agreement is signed by you.

Deciding Between Collaboration & Mediation

When to Choose Mediation

Couples who already feel some confidence and comfort communicating do best with mediation. That said, an experienced divorce mediator helps preserve the balance of power somewhat and assists couples in negotiating and reaching fair solutions. If there is a high level of trust between the parties, mediation can work best. 

When to Choose Collaboration

If either spouse feels they cannot adequately advocate for themselves, yet both spouses wish to work together on solutions for their family going forward, they might choose collaborative divorce so they each have an attorney to help them during the process.

Speak with a Philadelphia Divorce Lawyer to Find Out Which Is Right For You

Call today to speak with a Philadelphia divorce lawyer at Schwartz, Fox, & Saltzman. We have experience with both collaborative law and divorce mediation and can help you choose which alternative dispute resolution process is best for your family.

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