Collaborative Divorce vs. Mediation: Things You Need to Know

When people imagine going through a divorce, they often think of a lengthy court process, with opposing attorneys arguing their case in front of a judge. The truth is that divorce doesn’t have to be hostile.

Two alternative options that can allow you to settle your divorce outside of court are collaborative divorce and mediation. Both have pros and cons. Below, learn about the differences between collaborative divorce vs. mediation. 

What is mediation?

Divorce mediation is a method of resolving divorce outside of court. In mediation, divorcing spouses come together and work with a neutral third party, called a mediator, who helps them to reach an agreement on the terms of their divorce. 

While a mediator will ideally be an attorney, there are some trained mediators who are not practicing attorneys, and you can find qualified expert mediators who do not practice law. 

The benefit of using mediation for divorce is that you and your soon-to-be ex can work with the same mediator. There is no need for the two of you to hire separate mediators to walk you through the process of settling your divorce. 

If you and your husband or wife hire a mediator, this professional will act as a negotiator to help you come to terms on important issues, such as child custody, child support, and division of property and debts. 

Once you reach an agreement during mediation divorce process, your mediator will draft a memorandum of understanding that spells out the terms that were agreed upon between you and your spouse. 

Related Reading: What Is Divorce Mediation and How Is It Helpful?

What is a collaborative divorce?

Another option for spouses who would like to divorce without a lengthy court battle is a collaborative divorce. The difference between collaborative law vs. mediation is that collaborative divorces are always led by two attorneys specializing in collaborative law. 

In the mediation process, you and your spouse must hire just one neutral mediator, but in the collaborative divorce process, each person must have their own collaborative divorce attorney. Like mediators, a collaborative divorce lawyer works with spouses to help them reach an agreement on the terms of their divorce. 

So, what is a collaborative divorce, exactly? These divorces are characterized by four-way meetings, in which you and your spouse meet, with each of your attorneys present, to negotiate the terms of the divorce. You will also meet separately with your own attorneys in order to discuss matters that are important to you. 

Learn more about the collaborative divorce process here:

Related Reading: What Is Collaborative Divorce & How Does It Work

Do I need an attorney for collaborative divorce and mediation?

The difference between collaborative divorce vs. mediation is that mediation can be done without an attorney, whereas collaborative divorce cannot. You may choose to hire a divorce mediation attorney, but it is also possible to hire a trained mediator who does not practice as an attorney.

On the other hand, if you’re seeking a collaborative divorce, you and your spouse will each have to hire an attorney who specializes in this type of law. 

Mediation vs. collaborative divorce: The process

There is a difference between mediation and collaborative divorce when it comes to how the process works for each. Know more below:

• How the process of mediation works

If you hire a mediator to walk you through your divorce process, they will meet with you and your spouse to help you reach an agreement. You will have private, scheduled sessions during which you work toward coming to an agreement on important issues in your divorce.

The mediator acts as a peacemaker. They do not make decisions for you or give legal advice. Instead, they reduce the tension between you and your spouse so that you can resolve your differences. 

Once you have reached an agreement, the mediator drafts a divorce settlement, which spells out the agreement you’ve reached on terms such as child custody, child support, and finances. They may even file this agreement in court. 

• How the collaborative divorce process works 

In the collaborative divorce process, you and your spouse each hire your own attorney. You can each meet separately with your attorneys to receive legal advice, and ultimately, your attorney will represent your best interests. 

You will also come together with your spouse and their attorney to attempt to negotiate the terms of your divorce. Unlike a traditional divorce in which you, your spouse, and your respective attorneys appear in court for a trial, the collaborative divorce process is intended to be cooperative in nature, rather than combative. 

In collaborative divorce, you may call in outside experts, such as mental health professionals, to help you negotiate the terms of your divorce. If you and your spouse are unable to come to an agreement, you will each have to hire new attorneys to complete your divorce through the traditional divorce process.  

The pros and cons of collaborative divorce vs. mediation 

While collaborative divorce and mediation both allow you the option of negotiating your divorce without going to court for a trial, there are differences between these two methods. In addition, both methods come with pros and cons.

The main difference between collaborative divorce vs. mediation is that you do not need an attorney for mediation. This means that your costs are likely to be lower with a mediator vs. a collaborative divorce. 

On the other hand, one con when considering the differences between collaborative divorce vs. mediation is that a mediator who is not trained as an attorney cannot offer you legal advice; they are simply there to act as a peacemaker and help you to reach an agreement with your spouse. 

A collaborative divorce attorney can offer you legal advice, and they will also be able to represent your best interests. The drawback with this, however, is that collaborative divorce tends to cost more than mediation. You and your spouse will each need to hire your own attorney, which increases your costs.

The benefit with both collaborative divorce and mediation is that they allow you the option to settle your divorce outside of court. This allows you and your spouse more power in making decisions regarding child custody, finances, and division of debts, instead of leaving these decisions up to a judge. 

Finally, both collaborative divorce and mediation are less tense and often less anxiety-provoking, than going to trial to settle the terms of your divorce. 

Other FAQS about collaborative divorce vs. mediation 

If you’re exploring various divorce options, such as divorce mediation or a collaborative divorce process, the answers to the following FAQs can also be helpful:

• What happens if I cannot settle a divorce in mediation or the collaborative divorce process?

If you are unable to settle your divorce with mediation or a collaborative divorce attorney, you will have to seek alternative methods of settling your divorce. For instance, if you are not able to reach an agreement working with a collaborative divorce lawyer, you and your spouse will each have to hire a new attorney to represent you in court.

When methods of resolving a divorce outside of court are not successful, each spouse will have to consult with what is called a litigation attorney. This type of attorney will prepare your case with you and argue on your behalf in court.

At the same time, your spouse can hire their own litigation attorney who will represent their interests and argue on their behalf. A litigated divorce is often much more complicated, expensive, and lengthy than divorce mediation or collaborative divorce. 

• Are there other ways of resolving a divorce outside of court?

In addition to working with a mediator or a collaborative law attorney, you and your spouse can settle on the terms of your divorce on your own through a dissolution or uncontested divorce. 

If you and your spouse are on good terms and can negotiate without a third party, you may simply agree to child custody matters, finances, and division of property and debts without consulting with a third party. 

You can even prepare legal documents yourself by using online software for downloading forms from your local court website. You may ultimately decide to have an attorney review your documentation prior to filing in court, but there is no need to hire a professional if you and your spouse feel you can negotiate between the two of you.

On the other hand, you may attempt to negotiate a divorce outside of court by hiring an arbitrator. This is a third party who reviews the details of your divorce and ultimately decides upon the terms of the divorce, but they do so outside of the courtroom and without a trial. 

• Do mediators and collaborative attorneys take sides?

A mediator is truly a neutral third party whose goal is to help you and your spouse reach an agreement regarding your divorce. The difference between collaborative law vs. mediation is that in a collaborative divorce, you and your spouse will each have your own attorney.

While the goal of the collaborative divorce process is to reach an agreement outside of court using cooperation and conflict resolution, your individual collaborative divorce attorney represents your best interests, whereas your spouse’s attorney represents their interests.  In this sense, it can be said that collaborative law attorneys do “take sides.” 

• What are the main differences between collaborative divorce vs. mediation?

While each situation is different, in general, a collaborative divorce is more expensive than mediation. Furthermore, mediation tends to be less adversarial than a collaborative divorce. Even though collaborative divorce is meant to be cooperative, the very nature of hiring your own attorneys can make the process seem more conflictual. 

In addition, mediation gives you a higher level of control. Ultimately, you and your spouse decide together on what is best, with a mediator to guide you and act as a middleman. The mediator does not give legal advice, and whatever you and your spouse decide upon is the basis for your divorce settlement.

On the other hand, collaborative divorce involves some degree of legal advice and negotiation. You and your spouse could ultimately end up at odds, and have to undergo a litigated divorce, which takes the control out of your hands and makes the collaborative divorce process less certain when compared to mediation. 

• Is mediation or collaborative law for everyone?

Most attorneys agree that divorce mediation and collaborative divorce are solid options that should be explored before a couple decides upon a litigated divorce. These allow people to resolve disagreements and arrive at a divorce settlement without a lengthy court battle or the financial costs that come with a divorce trial.

In many cases, couples can resolve their differences outside of court through mediation or collaboration. For many people, a litigated divorce is a last resort when other methods have failed. In some situations, such as when there is extreme hostility between divorcing spouses, mediation and collaborative law simply may not work.

It may be helpful to consult with a local attorney or mediator to determine if settling outside of court is suitable for your situation. 

Wrapping up

There are some differences between collaborative divorce vs. mediation, but both allow divorcing couples the opportunity to settle outside of court. This often saves time, money, and the stress of going through an adversarial divorce trial.

If you are unsure of your best option, it is important to seek legal advice. The information in this article is not meant to substitute for the advice of a family law attorney.  

There are online resources available that can help you to determine if mediation or collaborative law may work for you. You may also be able to find resources through your local court or legal aid program. 

Ultimately, you and your spouse must determine how to proceed, and you may not always agree. Mediation can be a good fit for spouses who generally agree on divorce terms but want the assistance of a neutral party to keep negotiations peaceful. 

For those who want legal advice but wish to settle outside of court, without litigation attorneys, a collaborative law divorce may be better, as this option gives you the benefits of legal advice without the stress of a trial. 

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Jennifer Jacobsen Schulz Licensed Clinical Social Worker

Jenni Jacobsen is a licensed social worker with a master's degree in social work from The Ohio State University, and she is in the process of completing her dissertation for a Doctorate of Philosophy in Psychology. She has worked in the social work field for 8 years and is currently a professor at Mount... Read more Vernon Nazarene University. She writes website content about mental health, addiction, and fitness.   Licensed as both a social worker through Ohio Board of Counselors, Social Workers, and Marriage/Family Therapists and school social worker through Ohio Department of Education as well as a personal trainer through American Council on Exercise. Read less

(Jennifer Jacobsen is also listed in Best Marriage Therapists in Ashland)