Divorce mediation and a collaborative divorce may sound similar but the mechanics of these two approaches can be quite different. If you are unsure on which one is better suited to your situation, here is a look at how they work and what to expect.
Alternative to court trial
While there are some ways in which collaborative divorces and divorce mediation are starkly different, there are a few basics which remains the same in both cases. For one thing, they offer an alternative to a long drawn out and often expensive and messy battle in divorce court. Both offer a greater measure of control to you and your ex and don’t leave things to the discretion of a third party — the judge and your attorneys. However, there are some differences that could make one preferable over the other for you.
If the mediation or collaboration doesn’t work
In the event a divorce mediation doesn’t work out, you simply take your case to court to work it out before a judge. Your attorney presents your case and is already well-versed with the details so will be better equipped to represent you. However, if a collaborative divorce process falls through, your attorney is bound by a ‘no-court’ agreement. This is a document signed by you and your attorney and your spouse and theirs, stipulating that if the case heads to court, they must necessarily withdraw as your attorney. You will then both need to hire new lawyers who will want to do their own research ground up, resulting in some additional expenses and time.
In the case of a divorce mediation, an independent neutral third party is brought in to mediate. The operative being ‘neutral’. In other words, neither of your divorce attorneys can mediate. Instead, you and your spouse meet with the mediator (and attorneys when required), to work through your differences in a neutral environment. A mediator does not push you towards a settlement or agreement, but simply helps diffuse the situation and encourages conversation and conflict resolution so critical things like custody, alimony and division of assets can be worked out.
In the case of a collaborative divorce, both spouses and their respective divorce attorneys work together to arrive at a mutually acceptable solution through four-way meetings. The benefit here is you have legal counsel to support you throughout. It is a more effective and less expensive alternative to litigation but gives room for lawyers to negotiate and present arguments for you.
In many states, the discussions during divorce mediation are protected by mediation confidentiality laws. Collaborative divorce discussion are typically not. You can however, overcome this hurdle by getting everyone to sign confidentiality agreements before you begin the collaborative process.
Gerald A. Maggio is an experienced Orange County divorce and family law lawyer and family law attorney located in Irvine, California, serving the Orange County and Riverside areas. Mr. Maggio assists clients with legal issues including divorce, legal separation, divorce mediation, child custody, prenuptial agreements, stepparent adoptions, and other family law issues. Mr. Maggio has practiced law in California since 1999, and founded The Maggio Law Firm in 2005, focusing exclusively on divorce and family law matters.