You and your spouse may have already decided that you want to settle your divorce via a process of alternative dispute resolution rather than the traditional court trial. However, you still have to decide whether mediation or collaborative divorce is a better approach for your particular situation.
While the two processes have some features in common, they are also different in some very important ways. Here is a comparison of mediation and collaborative divorce.
Voluntary participation
Mediation occurs under one of two circumstances. Either it is a voluntary decision by you and your spouse or a court orders you to participate. However, a court cannot order you to undergo a collaborative divorce. You and your spouse must enter into it voluntarily.
Legal representation
Neither you nor your spouse has to hire an attorney to represent you in divorce mediation, although this is an option available to you. However, it is necessary for each of you to have separate legal representation during a collaborative divorce.
Contractual obligation
Collaborative law requires all participants to sign a contract prior to proceeding to demonstrate their commitment to the process. Among the contractual obligations that each party must adhere to is to agree not to threaten courtroom litigation. This is not a requirement for mediation, but if you or one of the other parties violates this rule during a collaborative divorce, the process has to start all over again.
Another provision that collaborative divorce requires is that the attorneys involved are no longer able to represent you or your spouse in your divorce. Therefore, not only do you have to start the process over, but you must retain new counsel.