What are the Big Differences Between Mediation and Collaborative Divorce?

Here in Connecticut, there are several options for divorcing couples who wish to avoid the high cost and stress of high conflict litigation. Two of the most popular alternatives—mediation and collaborative divorce—can work very well when both spouses come to the table with a cooperative spirit.

Collaborative divorce and mediation serve the same goal: to create a win-win agreement outside the courts. But each approaches the goal a bit differently, and the differences can be a little confusing.

Read on to learn some of the key differences.

You Have Your Own Lawyer in a Collaborative Divorce

In mediation, legal representation is encouraged, but effectively optional. A professional mediator oversees and guides the negotiations between you and your spouse while you iron out an agreement to be approved by the courts. An attorney can be involved as an advisor along the way or to review the agreement you and your spouse decide on (which we recommend, particularly to look over the agreement before you finalize your divorce), but you and your spouse can take responsibility for the details, with the help of the mediator.

In a collaborative divorce, both spouses hire legal representation, and the lawyers take an active role in the negotiations. However, the attorneys are committed to supporting and helping you complete your case in the collaborative process.  Although each lawyer represents his or her client, they do not take a combative stance as in litigation.  Instead, the collaborative lawyers function as part of your collaborative team rather than opposing sides. They share the goal of helping the spouses reach agreements.

In fact, both spouses and their collaborative team must sign an agreement not to litigate, so if your collaboration fails, you’ll need to hire a different attorney.  Some good news for context — the American Bar Association reports that 86 percent of collaborative divorce cases are successful.

For many people who choose collaborative, having their own lawyer next to them, helping express their interests is a big comfort.

Collaborative Divorce and the Team Approach

I have written the word “team” multiple times already.  That’s because it is one of the most critical, defining words when it comes to collaborative divorce.  Collaborative divorces often utilize one or more additional professionals in addition to the collaborative lawyers.  This is called the “interdisciplinary” approach.

The collaborative team typically includes the two spouses, two attorneys – one for each party – and often a coach, a neutral financial professional.  If there are children, often the coach will also serve a dual role as a child specialist.

Mediation can also utilize these additional professionals, although it is less common to take a full team approach in mediation. The key takeaway is that collaborative divorce is a team process with all members sharing the goal of a peaceful and fair resolution.

Guidance & Negotiation Assistance through the Collaborative Process

In a mediated divorce, the mediator oversees the process and guides the divorcing couple through issues as parenting, alimony, child support, property division, and more. In a collaborative divorce, no single person is in charge of the process; instead, you and your collaborative team work together to come to an agreement.  Plus, your Collaborative lawyer is there to assist you with negotiations whereas a mediator facilitates the negotiation but is not working on behalf of one party or the other.

Next Steps

If you would like to learn more about the different ways to divorce in Connecticut — collaborative divorce, mediation, and litigation — click here to watch our Founding Attorney Meghan Freed’s full presentation on Choosing Your Approach to Divorce.

At Freed Marcroft, we have helped hundreds of people move forward to a better life and make informed choices about their divorce options.  At our first step, the Goals & Planning Conference, we start by working through these questions with you to help you figure out your goals.  If you decide that divorce is part of what you need to do to get you to the future you want, we can help you.  If it isn’t, we will support you and help you figure out what you need to get you there instead.

Let’s keep you moving forward.