Many divorcing couples prefer to avoid litigation if possible. Creating a settlement agreement through an alternate dispute resolution (ADR) is often faster, less expensive, and provides parties more control over the outcome of their divorce. Two of the most common types of ADR are collaborative divorce and mediation. Understanding the pros and cons of each type of divorce process can help determine what option is right for you.
Mediation involves each spouse discussing the terms of a divorce with a neutral third party mediating the negotiations. This person may be a counselor, mediation attorney, or other professional. The mediator does not have any power over the outcome of the divorce like a judge would, but instead aids spouses to come to a solution. If spouses disagree on certain aspects or details of a separation agreement, mediation may be helpful in resolving those disagreements.
In a mediation, the mediator does not take sides. They remain impartial and flexible, helping each party to cooperate and reach a compromise.
Advantages to Mediation
There are several pros to mediation. This includes:
- Informal. The process is not required and is flexible to the needs of both parties, making it more convenient and optional for each party.
- Inexpensive. Mediation is much less expensive than litigation and requires only one attorney.
- Efficient. The mediation process can go much more quickly, particularly when spouses are willing to work together. Because there are fewer people and professionals involved in mediation, it often can move more quickly than a collaborative divorce.
- Private. Litigation places a divorce and personal information into the public eye, while mediation keeps it private.
- Controlled. Both spouses have complete control over the terms of separation, and there is no judge forcing a certain settlement or outcome.
- Less stressful. Litigation is often a high-stress and argumentative environment, while mediation allows couples to work together in a less formal scenario. Mediation is often less impactful on children than litigation or collaborative divorce.
Disadvantages to Mediation
One negative of the mediation process is that the mediator cannot force parties to come to an agreement. This can be helpful for some couples as it takes some pressure off, but it can also make it difficult for parties to reach a solution. If spouses can’t reach a separation agreement through mediation, they may have to enter into litigation or another ADR. This would mean a lot of wasted time, money, and energy. Often, the attorney mediating the negotiations is not a litigating attorney, so you may need to find another attorney.
Understanding Collaborative Divorce
Collaborative divorce is based on collaborative law, which is used to settle many family law cases. In a collaborative divorce, each spouse is represented by their own collaborative divorce attorneys. Negotiations for a separation agreement involve all four parties while remaining quicker, less expensive, and less formal than court proceedings. Collaborative proceedings are more likely to have other professionals involved, such as financial advisors.
Each attorney focuses on the interests of the spouse they are representing. If spouses can’t reach an agreement through a collaborative divorce and enter litigation, both attorneys withdraw.
Advantages of Collaborative Divorce
There are several upsides to collaborative divorce, including:
- Informal. Like mediation, collaborative divorce is more relaxed, more private, less expensive, and less stressful than litigation.
- Less conflict. In a collaborative divorce, there are two attorneys present. This can limit conflict between spouses that may be harder to prevent with one third party attorney. Each spouse also receives individualized legal advice.
- Security. When each spouse has an individual attorney, they often feel more confident in the divorce process. If there is a power imbalance between spouses, a collaborative divorce is an ADR that allows distance and professionalism between parties.
Disadvantages of Collaborative Divorce
Collaborative divorce also has some downsides. This includes:
- If parties can’t reach a settlement, they may have to turn to litigation and start from scratch, wasting time and money. Both attorneys will also have to withdraw, meaning spouses will need to find new attorneys.
- Collaborative divorce is often more expensive than mediation, though it is significantly cheaper than litigation.
- Solutions in collaborative divorce may be less creative than those proposed in mediation due to more legal and professional involvement.
What form of ADR will work for you and your spouse will depend entirely on your unique circumstances and relationship.
Q: What Is the Downside of a Collaborative Divorce?
A: One of the main disadvantages of collaborative divorces is that if spouses cannot reach an agreement, they are back at the beginning. Their attorneys must withdraw if couples turn to litigation. Spouses must find new attorneys to represent them in court, and a lot of time, money, and resources have been put into collaborative proceedings that are not useful for litigation.
Q: Can Mediation or Collaborative Divorce Simplify a Marriage Dissolution?
A: An alternative dispute resolution (ADR), like mediation or collaborative divorce, is often much easier and less stressful for a family. Court proceedings are long, expensive, and stressful. If you and your spouse have children, litigation can place them under a lot of stress, especially if they have to testify. ADR allows you and your spouse private and informal proceedings and gives you control over the outcome of a divorce. It also lays the foundations for your ability to co-parent in the future.
Q: Why Is a Mediator Important for Divorce?
A: In a mediation, the mediator is an important impartial, third-party professional. Their goal is to help divorcing spouses reach compromises and create solutions for their separation agreement. If you are looking into non-litigious options for divorce, mediation allows you to save time and money without involving too many professionals in the process. This gives you and your spouse more control over discussion while a mediator keeps you on track and aiming for a fair solution.
Q: What Are the Disadvantages of Alternative Dispute Resolutions?
A: Alternative dispute resolutions (ADRs) are not the right path if you and your spouse are unable to work together. An ADR requires parties to work together and be open and honest. It is unlikely that a contentious divorce will be solved with an ADR. It can also be harder to protect your interest if your spouse is controlling or unfair.
Work With Experienced Attorneys
If you are unsure if an ADR is right for your divorce, or don’t know which is most optimal for your situation, contact Stange Law Firm. Our skilled attorneys can learn about your circumstances and help you find the right solution.