Written by Dana W. McKee, Esquire.
Collaborative Practice and mediation are both forms of alternative dispute resolution that allow divorcing parties to avoid costly litigation but are very different from each other. Mediation is designed so that the parties can decide whether they want to be represented by their attorneys at the mediation. The mediator acts as a third-party neutral, who assists the parties with reaching a resolution on disputed issues. The mediator may or may not be an attorney. The Collaborative Divorce model, in contrast, requires each party to be represented by an attorney who has been specially trained in the Collaborative Practice. Depending on the complexity of the issues, other professionals trained in the Collaborative Process may be utilized such as a divorce coach, financial neutral, or child specialist.
The Collaborative Divorce is more suitable than mediation if the issues in the parties’ divorce are complex or when the resolution of the matter, whether because of an imbalance of knowledge regarding the parties’ financial affairs or the dynamics of the parties’ relationship, is such that additional assistance is needed from professionals to ensure an equitable resolution. The Collaborative Practice is more often suitable than mediation in the following circumstances:
- The parties’ financial affairs are complex;
- One or both of the parties are self-employed;
- One spouse has only a limited knowledge of the parties’ financial affairs;
- The parties have difficulty communicating with each other in an effective manner to resolve issues, but might be more willing to communicate effectively in the presence of others or with the help of a Collaboratively trained professional;
- The parties’ relationship is such that one spouse is uncomfortable advocating for his or her interests without the assistance of an attorney;
- The parties have a child with mental health or substance abuse issues or a disability;
- The parties have a mutual desire to end their marriage in a manner where each party’s needs have been met so that there is a “win-win” situation, rather than a “win-lose” result.
The choice of mediation versus the Collaborative Divorce is a decision that should be made after consultation with your attorney and a full understanding of advantages and disadvantages of each process.