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Differences Between Collaborative Divorce and Mediation

When it comes to filing for divorce, many may conjure up the image of a lengthy, contentious court trial. While litigation may be necessary for some scenarios, it doesn’t have to be the standard for how a divorce unfolds.

In New Jersey, there are a few different ways that divorcing couples can handle the divorce without a lengthy litigation process while still allowing you to achieve your goals for the divorce agreement and the next phase of your life.

We’re talking, specifically, about mediation and collaborative divorce.

What is mediation?

Mediation is a process where parties agree to resolve a dispute privately with the help of a neutral third person, known as the mediator. The mediator acts as a facilitator, helping both parties discuss, negotiate, and come to mutual agreements on their divorce matters.

While the mediator works to help both parties come to an agreement, they do not have the power to make a legally-binding decision on behalf of the divorcing couple. Couples may also choose to work with a family law attorney who is a court-approved mediator, meaning that they have received the requisite training to act in the capacity of a mediator.

What is collaborative divorce?

Collaborative divorce is a relatively new type of divorce proceeding in New Jersey that was made possible by the New Jersey Family Collaborative Law Act of 2014.

With this method, each spouse must work with their own collaborative divorce attorney and a team of collaborative divorce professionals, including financial advisors, mental health professionals, and other relevant advisors. At the outset of a collaborative divorce, parties agree not to litigate, and they work together toward a mutually agreeable resolution to a divorce agreement.

In a collaborative divorce, all meetings are conducted with both spouses and their respective attorneys present. Clients are also able to meet separately with their attorneys to discuss matters.

Do I need an attorney for collaborative divorce and mediation?

During a collaborative divorce, both parties must retain a specialized attorney as their counsel, along with a range of other collaborative divorce professionals.

On the other hand, mediation can be done without any divorce lawyer—only a trained mediator is needed.

Note that, even if couples choose the mediation route, they both have the option to work with attorneys to assist them throughout the divorce mediation process. An experienced family law attorney can help you understand your options and negotiate the best possible outcome for you in your divorce settlement.

Mediation vs. collaborative divorce: the process

To make an informed decision about which alternative dispute resolution is best for your divorce, it’s essential to understand the process for each method.

Mediation

The mediation process is relatively straightforward. In New Jersey, clients only need to select one individual to act as the mediator for both parties. They will then meet with this person as needed to work toward an agreement.

The key role of the mediator is to facilitate negotiations in a civil, non-confrontational manner. After an agreement is reached, the mediator can draft a memorandum of understanding based on those terms. The memorandum of understanding usually details the division of property, child custody, and child support.

Note that any agreement you reach during mediation isn’t legally binding on its own. It must be submitted to the court for approval before being incorporated into your final divorce judgment.

Collaboration

As mentioned above, a collaborative divorce involves attorneys for each party. However, the goal is to be cooperative rather than combative, so that both parties can avoid going to court.

Each party’s attorneys will work to negotiate the terms of the divorce until an agreement is reached. If an agreement is not reached, however, the parties must start the process over again with new attorneys.

Unlike with mediation, though, when you and your former partner reach an agreement in a collaborative divorce, that agreement is legally binding.

Mediation: pros and cons
Pros

One of the biggest reasons that couples opt for mediation is to save money. If neither party can afford to battle with divorce attorneys, it may make more sense to split the cost of hiring a mediator.

Additionally, mediation allows both parties to take the time to discuss and process their options, rather than having to make an immediate decision. Mediation allows for flexible timing, based on whether you want to move through the process rapidly or take your time.

Cons

Remember that a mediator does not act as an attorney advocate, and therefore cannot provide couples with any legal advice. Instead, they can only act as a peacemaker and attempt to help spouses reach a resolution.

There is no guarantee that an agreement will be reached with mediation. If necessary, couples may need to opt for another alternative, such as arbitration.

Collaborative divorce: pros and cons
Pros

A growing number of divorcing couples in New Jersey are opting for collaborative divorce to avoid a messy and time-consuming dispute in the courtroom. This is an appealing alternative to a litigated divorce proceeding because clients can still have a legal professional representing their best interests, but they don’t have the added stress of taking the process to court.

Cons

Though a collaborative divorce typically costs less than a litigated divorce, it may still cost more than mediation. Each party is responsible for hiring their own attorney to represent them at the collaboration meetings, and the rates charged on top of that by the collaborative divorce professionals may increase the cost of the process.

                        author

Kirsten Capalbo

Ms. Capalbo, who joined Dughi, Hewit & Domalewski in 2008, was named a partner in 2016, and named Chair of the Family Law Department in 2021, has over 19 years of experience in matrimonial law. At our firm, she limits her practice exclusively to family law, including all aspects of… MORE >

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