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Distinguishing Collaborative Divorce From Divorce Mediation

Couples that seek to dissolve their marriages without the challenges of litigation often turn to alternative dispute resolution. Non-litigation settlement strategies are particularly effective for couples committed to maintaining respectful relationships with their spouses after the divorce, and may also minimize negative consequences facing the children. The following issues, among others, are typically amenable to such settlement strategies:

  • Property divisions
  • Spousal support
  • Interim living arrangements
  • Child support
  • Custody and visitation

Divorce Mediation and Collaborative Divorce, Generally

Two kinds of alternative dispute resolution models, often used by divorcing couples, include collaborative divorce and divorce mediation. In divorce mediation, the parties hire an independent neutral third party who brings the spouses together (with their attorneys if any were hired) to assist them to reach a satisfactory divorce settlement. In collaborative divorce, a relatively new form of dispute resolution, each spouse hires their own attorney, and the two attorneys and their clients negotiate directly with each other without resorting to litigation.

Although divorce mediation has become a popular alternative to litigation, collaborative divorce, available in most states, is also beginning to establish itself as a successful form of divorce dispute resolution. Further, just as the practice of mediation is common in numerous other areas of law, collaborative law is starting to be used for numerous non-family law disputes, such as employment and business disputes.

Same Goals, Different Approaches

The underlying goal of both divorce mediation and collaborative divorce is to allow couples to reach mutually satisfactory divorce settlements in lieu of facing the unpredictable results of judge-imposed decisions. While both resolution models have proved to be generally effective, numerous differences may affect a couple’s decision when deciding which would be most appropriate.

Fees and Experts

Although few comparison studies have been conducted with respect to the costs of collaborative divorce, the general consensus is that litigation, on average, is more expensive. One study indicates that collaborative divorce fees generally reach about 1/3 the cost of the typical litigated divorce. Expenses will increase when there is a need to hire outside professionals. For instance, if the attorneys reach an impasse or lack the expertise to address a particular issue such as the value of one of the spouse’s businesses, a financial expert may be retained for assistance. In collaborative divorce, the parties generally split all costs and fees.

Similar to collaborative divorce, in mediation the parties generally split the mediator fees. However, unlike collaborative divorce, the parties are not required to hire attorneys (although the option generally remains open). Mediator fees can range widely, being as low as $100 to $200 per hour and sometimes exceeding $400 per hour, often depending upon the type of law involved or the complexity of the issues. Many mediators have separate fee scales for couples who choose to schedule the whole day.

Motivation to Settle Inherent in Collaborative Divorce

One feature unique to collaborative divorce, is the built-in motivation to settle. Specifically, if the parties are unable to reach a settlement, and the dispute proceeds to litigation, the attorneys must withdraw from representation. When this occurs, the parties are required to hire new counsel and pay the additional fees.

Additionally, participants to collaborative divorce generally sign agreements that include provisions against bad faith negotiations. Although similar agreements are sometimes signed prior to mediation sessions, in collaborative divorce, such agreements have a slightly different impact on the negotiation. This is due, in part, to the fact that attorneys participating in collaborative divorce have abandoned, to an extent, much of their adversarial duties in exchange for a more resolution-driven focus. In contrast, in mediation, the attorneys do not rely as heavily on the conciliatory nature of the negotiation and may choose to withhold potentially materially relevant information.

Power Imbalances

Disputants frequently rely on mediators to offset power imbalances between parties. Such issues may be present in instances where one party has difficulties communicating with the other for various reasons, such as when a wife is divorcing an abusive husband. Given the nature of such a relationship, it may be difficult for the wife to effectively verbalize some of her concerns or desires. Where an attorney is present at a mediation to represent the wife in this type of situation, such imbalances will be minimized. Nevertheless, mediators often ask the parties, at some point, to speak directly with each other, often as a means of venting or “to get it all out.” Even without attorneys present, mediators who employ proper techniques will still be able to neutralize such imbalances. In collaborative divorce, however, this concern is arguably less pronounced since the attorneys are communicating directly with each other and act as buffers between difficult personalities.

Balances of power may also be affected by attorney representation or the lack thereof. Mediators are generally not permitted to provide legal advice, but may provide legal information. Thus, unrepresented parties may be at a disadvantage in a mediation. However, this is never an issue in collaborative divorce.