As an attorney who practices both collaborative divorce and mediation, it’s a question I’m often asked. To be honest, my answer really does not matter. The best choice between collaborative divorce or divorce mediation depends on the individuals going through the divorce, their honest appraisal of themselves and their situation and their comfort level. If you’re trying to determine whether collaborative divorce is right for you, start with a few questions.
Would you feel better going through the process with an attorney at your side both during negotiation sessions and immediately before and after those sessions?
Do you feel the negotiation would go better with the assistance of a divorce coach/facilitator? This is somebody who would meet with you and your spouse individually prior to the start of the negotiation to help you through the rough patches when things might get tense. This person is also instrumental in laying the foundation of the relationship you will have with your ex post-divorce.
And would you feel better having a team of neutral experts—financial, real estate, aforementioned divorce coach, etc.—there as a resource during the negotiations? Remember, these professionals are there with one sole objective—to make the sessions go as smoothly as possible and to help you and your spouse come to a resolution that can both live with.
If you answered yes to any or all of these questions, you should consider collaborative divorce as an option. Yet not every couple will have the same answer to these questions.
For example, you may feel that you and your spouse are pretty much on the same page and have a certain level of trust so that you don’t need an attorney at every session—perhaps just as a resource to consult prior and after sessions.
Financially, maybe you don’t have a complex assortment of assets. You and your spouse agree your marriage is over and believe you can work through an equitable split of assets without going back and forth with attorneys.
In terms of a divorce coach, you might feel might feel you and your spouse can communicate and get through this process without any major hiccups.
If that sounds like you and your spouse, divorce mediation might be the better option for you.
Of course, there are people who go through this series of questions and make a decision based on finances. Divorce mediation doesn’t have quite the same level of commitment with attorneys or the use of a team of specialists. Consequently, it’s a more affordable option.
That big maybe was to illustrate that selecting mediation when it is not right for you and your spouse might cost more in the long-term.
If you and your spouse reach an impasse during mediation you might find that your desire to stay out of court is derailed. The impasse can be as simple as you and your spouse not being able to agree on some key points like who stays in the family home, parenting arrangements, dividing inherited property, etc. Although these items might have seemed resolve-able at the outset, it could go the other direction if the parties engage in antagonistic communications outside of the mediation, one party makes unilateral decisions without consulting the other, or one or both of the parties loses his/her temper, breaking down communication even further. In the infrequent times where my mediations have not been successful, one or both of the parties has hired litigation counsel, not collaborative counsel.
This may seem like I’m steering towards collaborative divorce. No, far from it. The initial meeting I have with people involves two things: presenting options and then asking for an honest self-assessment. The type of divorce you choose should reflect your assessment.
You may think you could handle divorce mediation but prefer the support offered by collaborative divorce. That’s fine.
You may think you would prefer collaborative divorce but just don’t have the money or want to spend the money on attorneys and experts. That’s fine, too, but you need to realize that decision comes with risk.
You may not be able to reasonably and successfully negotiate with your spouse.
One reality you need to face is that it can be very difficult emotionally —and expensive–to go to court if you cannot reach a resolution. Making the right decision about the right type of divorce for you now—occasionally even the more expensive option—will save you time, money and emotional wear and tear in the future.