What Is The Difference Between Collaborative Law And Mediation?

If you are preparing to go through a divorce and you would like the process to be amicable, you have three primary options available. These are: (i) engaging in private settlement negotiations, (ii) utilizing the collaborative law process, and (iii) going to divorce mediation. Importantly, these options are not necessarily mutually exclusive. Oftentimes, spouses will resolve certain aspects of their divorces through private settlement negotiations, and they will use collaborative law or mediation to resolve more complex issues that require additional structure or input from neutral third parties.

When deciding how to move forward with your divorce, it is important to have a clear understanding of when collaborative law and mediation can benefit the negotiation process. It is also important to understand the limitations that each of these options present, as neither works well for all couples under all circumstances. In this article, our lawyers provide an overview of the differences between collaborative law and mediation, and provide some tips for deciding whether one (or both) might be right for you:

What Is Collaborative Law?

Collaborative law is a framework that is used to find amicable ways to resolve complex issues during the divorce process. It facilitates open discussions in which both spouses have complete access to all relevant information, and it allows spouses to reach an agreement without relying on a third-party neutral (i.e., a family court judge) to make decisions for them. As a result, collaborative law is often a good option for couples who are willing to work together in good faith and who want to maintain complete control over the outcome of their divorce.

There are a few key characteristics that distinguish the collaborative law process from private settlement negotiations conducted outside of the framework. These are:

• Structure – In a collaborative law divorce, each spouse must be represented by his or her own attorney. At the outset of the process, the spouses enter into a binding “no court” agreement in which they make a mutual commitment not to resort to litigation. Once this structure is in place, the spouses will typically engage in multiple scheduled negotiation sessions, and they will each meet separately with their respective attorneys on a regular basis.
• Disclosure – In order to facilitate productive and good-faith negotiations, the spouses will fully disclose all financial and other pertinent information to one another. This ensures that each spouse is able to make fully-informed decisions, and it eliminates the need to formally request this information through the discovery process.
• Professional Advice – In addition to being represented by their respective attorneys, the spouses will also engage financial advisors, family psychologists, and other professionals as necessary to help guide their discussions. Again, the goal is not to have someone else make decisions on your behalf, but instead to gather the information you need to feel confident negotiating the outcome of your divorce.

What Is Mediation?

Mediation differs from collaborative law in several ways. While both allow divorcing spouses to resolve their differences out of court, they do so through different means. The key characteristics of mediation are:

• Guided Negotiations – Mediation can best be described as a form of guided negotiation. In divorce mediation, the spouses’ goal is still to negotiate a settlement agreement, and the mediator’s role is to help them find common ground upon which they can build the terms of their settlement.
• Neutral Non-Decision Maker – Unlike a family court judge, a mediator is not a decision-maker. The mediator’s role is not to hear the spouses’ respective arguments and then render a decision, but rather to use his or her expertise to help the spouses come to terms. Typically, divorce mediators are attorneys or former judges, and they rely on their past experience to help divorcing spouses consider settlement options that they would not have otherwise considered on their own.
• Limited Structure – While mediation sessions are relatively structured (depending on the complexity of the issue or issues to be resolved, spouses could go to mediation once or schedule multiple sessions), overall, utilizing mediation is less structured than utilizing collaborative law. Outside of mediation, each spouse works with his or her attorney independently, and each spouse remains free to resort to litigation should they decide that it is in their best interests to do so.

When Should Divorcing Spouses Consider Collaborative Law or Mediation?

If you are hoping for an amicable divorce, how do you decide if collaborative law or mediation is right for you?

The simple answer is that this is something you will need to discuss with your attorney. As we mentioned, neither collaborative law nor mediation works for everyone, and in some cases, neither will be necessary. Additionally, it may make sense to pursue private settlement negotiations initially and then make a determination as to whether collaborative law or mediation is necessary. It may also be the case that you and your spouse are able to resolve some aspects of your divorce independently, and then you can pursue collaborative law or mediation to resolve the more complex issues that require more in-depth consideration.

What about deciding between collaborative law and mediation? Again, there is no single “right” answer. Generally speaking, collaborative law works well when the spouses need expert advice (e.g., financial planning advice or insights from a child psychologist), while mediation is a good tool for breathing life into settlement negotiations that have had limited productivity. But, there are no hard-and-fast rules, and deciding how you want to move forward is ultimately a matter of making informed decisions based upon the specific facts and circumstances at hand.

Speak with the Proven Lawyers at Bolan Law Group.

If you have questions about using collaborative law or mediation in your divorce, or if you have any other questions about the divorce process in Washington, we encourage you to schedule a confidential initial consultation at Bolan Law Group. To schedule an appointment with one of our attorneys in Tacoma, WA, please call us directly or tell us how you would like to be contacted online today.