Collaborative Divorce vs. Mediation

couple holding wedding rings in their hands - collaborative divorce vs. mediation concept

Choosing the right divorce process for you depends on fully understanding your options, and the benefits and limitations to each choice. Comparing Collaborative Divorce vs mediation can be confusing, and neither process is right for every case. Here are some things to consider in deciding between mediation and Collaborative Divorce.

What is the Difference Between Mediation and Collaborative Divorce?

Mediation and Collaborative Divorce are both alternative dispute resolution options that help Michigan couples dissolve their marriage or resolve their custody disputes without going through trial. However, they are far from the same process.

What is Mediation?

At its most basic, mediation is just a facilitated conversation between two people to resolve a dispute. In divorce mediation, you and your spouse (and often your attorneys) will meet with a neutral, impartial facilitator who will help you identify outstanding issues, communicate your priorities and needs, and find a resolution that covers as many aspects of your divorce as possible. Anything that gets resolved will be recorded in a settlement agreement which is binding. That means neither you nor your spouse can ask the Court to do something different than what you agree to during mediation. (The Court can still refuse to enter a child custody or parenting time order that the court finds is not in the child’s best interest.) Anything that is not resolved can be reserved for an additional mediation session, or taken to the Court to decide through litigation.

What is Collaborative Law?

Collaborative law is an out-of-court process where couples commit to working together to avoid litigation and resolve their disputes with the help of a team of professionals. Collaborative divorce applies the collaborative law principals to the dissolution of a marriage, allowing you to resolve custody, support, property, and other concerns without going through litigation. In the collaborative law process, you and your spouse will each hire a collaboratively trained divorce attorney to consult with you, as well as an optional divorce coach who facilitates the process. You may also decide to hire individual therapists, financial advisors or planners, appraisers, and other professionals who can help you both consider the long-term effects of the choices you make. Once you and your spouse complete the collaborative divorce process, your attorneys will draw up a settlement agreement and present it to the Court for entry. (You can only be legally divorced by a judge.)

Why is Collaborative Divorce Better than Mediation for Co-Parents

While there is no one divorce process that is better than the others in every case, many parents find collaborative law more effective and empowering than mediation in resolving issues related to their children. Unlike property disputes – which are effectively done once the agreement is signed – child custody demands ongoing communication and flexibility from co-parents. If you and your spouse don’t communicate well, this can lead to years of post-judgment motions to resolve everything from school enrollment to big changes in custody. But the collaborative model teaches parents how to problem-solve together. This can help you avoid returning to court when circumstances change. It also provides you support from professionals trained in psychology and conflict resolution, so you can learn the skills you need to de-escalate conflict and come to a resolution more easily.

The Collaborative Divorce process also puts more emphasis on the practicality of proposed solutions, rather than just the parties’ willingness to abide by them. For example, in a collaborative divorce, you may ask your financial advisor whether splitting your investments will leave both spouses enough to retire and account for what will happen if one spouse needs to withdraw funds early. These questions often go unanswered during mediation since those financial professionals are not at the table. In custody cases, you and your spouse can discuss your proposed parenting plan with a child psychologist who can help you understand the effect your plan will have on your children, and what to expect as your child gets older.

When is Mediation Better than Collaborative Divorce

As effective as Collaborative Divorce can be, it is not right for every couple, or every case. Early mediation, even before filing for divorce, can sometimes be the fastest and least expensive way to resolve your property and custody disputes. It can be far less costly if you don’t have much in the way of marital property to meet with a mediator – sometimes without attorneys – to decide how you will divide what assets you do have and narrow down the issues to be resolved in court. If you are able to settle everything, you and your spouse can file an Uncontested Divorce and have your marriage dissolved, often with just one hearing.

Mediation is also an option when one spouse jumps directly into litigation without considering out-of-court divorce options. In Michigan, most family law cases – including divorce and child custody disputes – are referred to mid-stage mediation by court order. Judges across the state want to give parties the chance to resolve their disputes before setting the matter for trial. It can be far harder to remove a case from litigation and pursue a collaborative divorce after the paperwork has already been filed.

Similarly, once a Collaborative Divorce is begun, you can only go to court in an emergency. Doing so ends the collaborative process and requires hiring separate attorneys. In mediation, you can decide to ask the Court to resolve specific aspects of your divorce, or file motions to address issues that come up along the way. This can muddy the waters, but mediation can still continue, unlike the collaborative process, which ends whenever either spouse files a motion in court.

Finally, mediation is the better choice if your spouse is not fully trustworthy or transparent. Collaborative divorce depends on both parties being committed to full disclosure of assets and the non-confrontational resolution of custody and divorce disputes. If you have any concern that your spouse may be hiding assets, or being less than forthcoming about your children’s care and well-being, you may be better off choosing mediation vs collaborative divorce. This is because mediation can happen within the litigation process. If your spouse fails to fully disclose everything, your attorney will still have the ability to subpoena records and perform formal discovery into your spouse’s affairs.

At NSSSB, we help many couples and co-parents resolve their Michigan divorces or custody disputes amicably, using mediation and collaborative divorce processes, as well as traditional litigation. Our Ann Arbor divorce attorneys will walk you through the options to help you pick the divorce process that works best for you, and assist you in negotiating a settlement and filing the appropriate paperwork with the courts once you have reached an agreement. Click here to schedule a consultation with our divorce team.