14 Jan Divorce 101, Part 2: Collaborative Law vs Mediation vs Litigation
What’s the Difference between Divorce Mediation, Collaborative Divorce, and Traditional Divorce Litigation?
It’s fairly common for many clients who come through our door to believe that there’s only one path to divorce: the familiar adversarial litigation process. But that’s not the reality at all. Multiple roads to divorce exist, some faster and less adversarial than others.
Which path might be right for you? Let’s take a look at the three most common options.
A mediated divorce is one where a neutral third person–a mediator– helps the divorcing couple to work through the issues of their divorce and arrive at a mutually satisfactory settlement. The mediator, a professional who may or may not be an attorney, doesn’t take sides but acts as a facilitator as the couple decides the best way to resolve thorny issues, such as child custody or spousal maintenance.
Think of the mediator as a co-pilot who is helping you drive down a dark road that has a sheer 100-foot drop on either side. You’re doing the driving, but the mediator gives you the support and advice to get you safely to your destination. Mediation has numerous advantages. It’s almost always less costly than litigation and is usually a shorter process. Also, settlements arising out of mediation are not a matter of public record, unlike in litigation.
On the other hand, mediation has no formal rules, which might not work for some couples who prefer hard, bright lines and it not usually productive for couples who disagree on most issues in the divorce. It also may not work when domestic abuse is involved, as the abused party may have difficulty asserting their position.
Collaborative divorce is one in which the divorcing couple and their respective attorneys agree to dissolve the marriage and resolve conflicts by using cooperative techniques rather than an adversarial approach. In fact, all parties and their lawyers sign an agreement to keep the proceedings confidential and not seek litigation; in other words, the case will not go to court no matter what.
The attorneys in a collaborative divorce are specially trained in negotiation and managing conflict. In this case, you can think of lawyers as a “chauffeurs” on that dark road: You’re sitting in the back directing their actions but also relying on their expertise to get you to your destination safely.
The main advantage of a collaborative divorce is that it helps to preserve a good working relationship between the divorcing couple. An acrimonious divorce serves no one’s best interest – both parties often go through a great deal of emotional turmoil, from which you’ll feel the effects even if you “win.” A collaborative divorce can help you maintain your emotional health and start your new life on the right foot.
Collaborative divorce is not just for couples who agree on most issues, but for those who are determined to get through the divorce process as amicably as possible. Take note, however, that if you are unable to reach a settlement and want to take a litigation route, you will have to start the process from the beginning –including finding a new lawyer. Collaborative divorce lawyers will not represent their collaboration clients in subsequent litigation proceedings.
Traditional Divorce Litigation
Traditional divorce litigation is an adversarial proceeding in which a court resolves the issues between the divorcing couple. Usually, the couple has one or more major issues in need of resolution, such as property division or child custody issues.
Litigation is a suitable option for people who have unsuccessfully tried to resolve their issues through mediation or collaboration. It also might be preferable for someone in a domestic abuse, child abuse, or drug abuse situation: these circumstances may make it too difficult for the couple to take a more collaborative path to divorce. On the downside, traditional litigation can be lengthy, expensive, and you’re often at the mercy of the court for both timing and the results.
The Wesley Clark & Peshkin Method
The experienced attorneys of Wesley Clark & Peshkin can help you with any of these three paths to divorce. If you’re seeking a divorce, please contact our office at 585.546.1734 (Rochester) or 315.679.5512 (Syracuse). We would be happy to help you achieve the best outcome possible.