Collaborative divorce is a non-adversarial process option. In a collaborative divorce process, each spouse has his or her own attorney to guide that spouse every step of the way. In addition, many collaborative divorce processes make available to both parties professional guidance from other collaboratively trained, neutral professionals known as coaches, financial neutrals, and child specialists. The goal of the collaborative professional team is to create an environment which mitigates any historical imbalance of power and ensures that both parties have the same information and same unrestricted access to the neutrals on the professional team. In this way, both parties are able to make a voluntary, well-informed, educated decision to enter into a mutually acceptable and durable resolution.
Possible benefits of collaborative divorce may include:
- Interest-based negotiations are utilized, similar to mediation, promoting the parties’ long-term ability to effectively communicate and minimizing the negative impact upon children from their conflict.
- All information is voluntarily and transparently shared fully in a private forum. All negotiations take place directly, face-to-face, in four-way meetings in which an environment of trust is promoted by the knowledge that the other spouse’s attorney will not some day be an adversary.
- Each of the lawyers is retained for only the limited purpose of helping her or his client reach an acceptable settlement on all issues, without litigation or threatening to litigate, which necessarily invests the attorneys in the success of the process.
Possible drawbacks of collaborative divorce may include:
- Like mediation and lawyer negotiation, each side has the unilateral right to terminate the process at any time and force the other party into litigation.
- Unlike mediation or lawyer negotiation, if the collaborative process fails, neither lawyer can continue to represent her or his client and each client must retain new counsel for litigation, with the likely effect of duplication of services and costs.
- Each party may reach a point where she or he feels that there is no choice but to settle because of the investment she or he has already made in the process.
Mediation is a non-adversarial process option. For divorce matters, a mediator is usually an attorney who acts as a neutral facilitator who helps the couple identify and resolve the issues facing them. It is important to note that a mediator does not make the decisions for the couple as it is unethical for a mediator to provide legal advice. Instead, a mediator helps each party fully understand the position of the other party. Generally, mediators can be most helpful where the issues between the parties are somewhat limited in scope and where significant power imbalances do not exist between the spouses.
Possible benefits of mediation may include:
- A third party neutral facilitates resolution by direct, face-to-face negotiations between the parties.
- Parties retain control over decision making so that each party’s needs and interests, along with a wider variety of options, are generally given consideration, not just the limited evidence allowable in adversarial processes (such as litigation or arbitration) and strict application of the law.
- As opposed to litigation or arbitration, it is a process that can more effectively address the interpersonal issues that can obstruct resolution.
Possible drawbacks of mediation may include:
- The neutral mediator cannot individually counsel either party or do much to level unequal bargaining positions between parties.
- The neutral mediator is limited in his/her ability to facilitate the discovery of necessary information in the face of one party’s obstructive behavior, and is ethically prohibited from preparing the final agreements and other legal paperwork.
- Since the parties’ lawyers generally do not participate directly in the negotiations, the lawyers remain unaligned with the process, resulting in a greater risk that the mediated agreement may be scuttled when each party receives her or his lawyer’s critique.