Collaborative Divorce vs. Mediation

couple sitting across from each other with hands folded

If you have been thinking about divorce, but wanting to avoid a stressful court battle, you may have come across the terms “Collaborative divorce” and “divorce mediation” in online searches. Both are popular types of alternative dispute resolution (ADR) used to resolve divorces. Can they really help a divorce remain amicable? What’s the difference between Collaborative Divorce and mediation? And which one is better for your needs? Let’s discuss.

Divorce Mediation

You have probably heard of divorce mediation, but you may not know the particulars. Divorce mediation is mandatory in South Carolina divorce cases because it is so effective in helping spouses reach agreement, avoiding unnecessary trial (and work for the court system). Here’s how it works.

Both parties agree to work with a mediator, a trained neutral party whose job is to facilitate discussion and resolution of issues in their divorce. Unlike a judge, the mediator does not make any decisions in the case. He or she just helps the parties to negotiate, with the goal of achieving a “win-win” resolution of disputed issues.

In the mediation session, spouses typically remain in different rooms, usually with their attorneys. The mediator moves back and forth between them. Both parties can speak candidly with the mediator, who will not reveal to the other party anything told to the mediator in confidence. Because the mediator gets to hear where both sides are coming from, he or she can often help move them toward agreement. The mediator cannot give any legal advice, which is one reason it is recommended to have an attorney in mediation.

If the parties are able to reach agreement through mediation, the mediator will memorialize the agreement in writing with the help of the attorneys. Usually, the court will then approve the agreement. If the parties cannot reach agreement on all issues in their divorce through mediation, they may still be able to reach a partial agreement. The more the parties are able to agree, the shorter (and less expensive) their trial is likely to be—not to mention less stressful.

In general, advantages of divorce mediation include that it is often quicker and less expensive than litigation; it gives the divorcing spouses more control over the resolution of their divorce; and it can reduce hostility between the parties, which is important if they will need to co-parent together.

Collaborative Divorce

While you may know someone who has gone through divorce mediation in South Carolina, you are probably less familiar with Collaborative divorce. Like mediation, Collaborative divorce is a form of alternative dispute resolution, but the mechanics are somewhat different.

In Collaborative divorce, divorcing spouses each work with an attorney who has completed training in Collaborative process. The spouses and their attorneys agree in writing not to litigate the divorce and to negotiate honestly and respectfully.

The Collaborative process unfolds in a series of four-way meetings between the parties and their attorneys. These meetings are intended to identify issues, exchange information, and work on mutual problem-solving. There are as many or as few meetings as the divorcing spouses need, and they take place on the couple’s timetable.

One of the unique features of Collaborative Divorce is the involvement of professionals other than lawyers. The four-way meetings may actually involve more than four people. The couple may work with a financial neutral who helps them to understand the financial effects of various settlement and support options they may be considering. Divorce coaches can help the parties confront and work through emotional issues that are keeping them from reaching resolution in their divorce. Child specialists meet with the parties’ children and serve as their voice in the divorce process. Depending on the spouses’ needs, any or all of these professionals may play a role in helping the couple reach a settlement.

A common concern when parties learn about all the professionals who may be involved in a Collaborative divorce is expense: doesn’t it cost more to have all these people working on a divorce? It can. But often, what happens is that having trained professionals supporting the spouses on emotional, financial, parenting and legal issues makes the process more efficient and leads to a better outcome. Like a pit crew for your divorce, each professional has their specialized role to help everything go smoothly so you can keep moving forward. Once the spouses reach agreement, the attorneys prepare the settlement document and it can be submitted to a judge for signature, typically with the couple appearing briefly before the judge.

Most couples who go through Collaborative divorce are glad that they did. On occasion, though, a couple will find themselves unable to reach a settlement through this process. When that happens, the agreement the couple and their attorneys signed at the outset prevents them from using information learned in the Collaborative process against each other in future litigation. They must also work with new attorneys if they litigate. Knowing that what they say in Collaborative meetings cannot be used against them allows parties to be completely open and honest, and even to apologize to the other spouse, which rarely happens in litigation.

Advantages of the Collaborative process are similar to those of mediation: the parties have more control over the process and outcome; the divorce is usually quicker and may be less expensive than a litigated divorce; the process is more dignified and respectful; and it is more likely to promote a more cordial relationship between ex-spouses who have to co-parent together.

Collaborative divorce is not right for everyone; for example, couples where there is a history of abuse or a significant power imbalance might not do well with the Collaborative process. Likewise, if one spouse is unwilling to deal honestly, the process might fail. Generally, though, even couples who don’t get along can successfully divorce using the Collaborative process with the support of their professionals.

If you have questions about divorce mediation, Collaborative divorce, or other divorce options, please contact Brinkley Law Firm to schedule a consultation.

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Stephanie M. Brinkley's Profile Image
Since founding Brinkley Law Firm in 2011, attorney Stephanie Brinkley has helped families grow and expand by navigating them through the legal challenges surrounding Assisted Reproduction Technology (ART) and Adoption. As an attorney who focuses on f… Read More
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Originally from Los Angeles, Christopher Kays moved to Charleston in 2007 when he reported to The Citadel for his knob year to study psychology. As a cadet, Christopher volunteered at the VA hospital and helped establish Leadership Day, The Citadel… Read More

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