Divorcing? Here is a snapshot view of collaborative divorce, mediation and litigation models

Divorce is a complex, expensive and soul-destroying event in the lives of many folks. We know. But it can be more or less horrible depending on how you go about it. There are three ways to handle the legal fall out of a divorce. 1) Litigate 2) mediate and 3) collaborate. Here are the differences in the three models:
This is obvious and it is what most people in a contested scenario do. It is the most expensive way, the most combative and potentially the most damaging depending on how the drama unfolds. It involves both parties getting their own attorney(s) and pelting the other side with demands, motions, interrogatories and boxes of papers. It involves going to court and airing all your dirty laundry (if you are a public figure, this can be embarrassing to say the least and most of the time you can’t get a gag order just because you are famous or news-worthy.) It involves a judge who will likely be the trier of fact if the case goes to trial. If the case settles before trial, once you litigate a judge will still be assigned to your case and there will be many court appearances where both parties will have to attend.
Mediation is a great alternative to litigation because it is less adversarial and it involves a “mediator” as opposed to a “judge.” Although, there are probably many judges who act as mediators. Lawyers too are often mediators.¬† But it is not necessary for a mediator to be either a lawyer or a judge. You can think of the mediator as a sort of peacemaker and a neutral party whose job it is to, first of all, keep the peace and second of all, relay each sides wants and desires to the other and assist the parties in ending the marriage without all the bloodshed. Yes, you still can get a lawyer to assist you with the negotiations re issues such as spousal support, custody, asset distribution – all the usual issues in a divorce. But the beauty of mediation is that the onus is on the two people who are divorcing. They have to agree to disagree and they have to want to resolve their issues in a sensible, peaceful way. They have to abhor the circus of going to court and airing their dirty laundry in a litigation scenario. The mediator is someone they mutually agree upon and the mediator is just a facilitator, even though the two people are really the ones doing the work.¬† Sure, sometimes, mediation fails and the couple ends up getting lawyers and litigating the case anyway. And even though you mediate, you still need to take the papers to court to have it become a court order (or you are not divorced!);¬† But when it works mediation is truly a pleasant alternative to litigation. Btw, sometimes the mediation is ordered by the court and in such a case, both parties must attend or face sanctions.
Collaborative divorces are special animals and these are also alternatives to litigation. Attorneys are involved but they are specially trained in collaborative techniques and if the collaboration fails, the attorneys have to recuse themselves and the couple would have to go off and get new lawyers to litigate the divorce. How does collaborative divorce work?
Collaborative divorce is a form of ADR (Alternative Dispute Resolution). In this model, the lawyer is not a neutral party. Both sides need lawyers of their own. It is different from mediation in this way because usually in mediation there is one lawyer who’s at the table working with the couple draft up an agreement; those couples who mediate pretty much agree on most terms anyway and they just need assistance in bringing the final agreement to paper. With collaborative divorces, there may be disagreements and the couple needs to negotiate. But it is still a far cry from litigation because the couple is at least willing to sit and try to work through their issues in a reasonable manner. They voluntarily chose collaboration so that tells you a lot about their mindset from the get go.
With collaborative divorce the lawyer is not a mediator trying to work with both parties. Each party has a lawyer(s) of their own. At the same time, colloborative model is different from litigation because it is not “adversarial” in the sense that there is no court scenes and drama. There is no judge. There is no airing of dirty laundry in public. There is no trial. Sure, the final papers still reach the court and a judge has to sign off on them before it becomes a binding divorce settlement agreement. But, still, it is a far cry from the litigation model.
Image credit: