How is Using the Collaborative Process Different from a Traditional Separation Process?

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Many separating and divorcing couples turn to alternative (we like to call it appropriate) dispute resolution (ADR) methods rather than going to court. Popular forms of ADR include mediation and the Collaborative Process. Both tend to be cheaper, faster, less adversarial, more flexible, and more private than a court divorce. While mediation and the Collaborative Process are similar, there are some key differences. 

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Mediation

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Mediation involves bringing in a specially trained neutral third party, often a lawyer, to help separating couples resolve their issues outside of court. A family law mediator strives to facilitate an agreement between opposing parties on the primary issues of separation, which will later be submitted in court.  

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A mediator guides couples through such common issues as child support, custody, parenting time, spousal support, and division of assets and debts. While mediators may not provide legal advice, they can help couples understand relevant legal consequences. 

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Mediation requires both parties to be willing participants. As the process is voluntary, it may be terminated at any time. For mediation to be most effective, it is beneficial to have a base level of trust and good faith between the separating parties, as they will each be relied upon to provide an honest account of their circumstances, including sharing financial statements. 

 

Collaborative Process

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A Collaborative Process is similar to mediation because it is a voluntary negotiation process designed to reach a consensus outside the Court system. However, in a Collaborative Process, rather than facilitation by a neutral third party, couples and their team, including lawyers, coaches and financial specialists, meet to build solutions. 

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At the outset of a Collaborative Process, each party signs a participation agreement stating they will do their best to reach an equitable settlement and will not go to court. If a final separation agreement cannot be reached, or if one of the parties breaks the participation agreement and proceeds to court, each party must retain new counsel. 

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Mediation vs the Collaborative Process

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Mediation and the Collaborative Process offer comparable benefits to participants, as they both tend to be faster and more cost-effective than court proceedings. Additional advantages include:

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• Both processes are voluntary, allowing them to be terminated at any time without significant repercussions other than the time and expense of starting over.

• Compared to court, the informal setting is often less stressful and allows for greater flexibility in finding solutions tailored to each family's unique circumstances.

• A focus on consensus-building, rather than viewing the situation as "winners" and "losers," minimizes conflict within family relationships and fosters valuable problem-solving skills, especially when children are involved.

• Both processes are confidential, encouraging both parties to be more open and honest than they might be in a court setting. 

 

Mediation, typically involving fewer participants, can be more flexible and easier to arrange than the Collaborative Process. This simplicity can make the process more efficient and less expensive, with fewer professionals involved. However, it's important to note that mediators cannot provide legal advice and rarely assist with financial planning, and they may not have expertise in creating parenting plans. In such cases, spouses might need external professionals to support their mediation process. Conversely, the Collaborative Process is more likely to result in a comprehensive separation agreement and parenting plan, providing a clearer path toward a better future.

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The Collaborative Process also offers the guidance of a lawyer dedicated to looking out for each spouse's best interests throughout the negotiation process. This support can be particularly valuable when a pre-existing power imbalance in a relationship hinders one party's ability to advocate for themselves or when complex issues require expert guidance.

However, the primary drawback of collaborative divorce is that if it fails, each spouse must start over with new legal counsel, incurring additional expenses and delays. Similarly, if the mediator lacks litigation expertise and the mediation process is unsuccessful, the spouses will need to pursue a different approach.