Mediation or collaborative divorce

Both keep you out of a courtroom and both aim at an agreement rather than a ruling. The difference is who is in the room and how the professionals are engaged.

The short version

In mediation, one neutral professional works with both of you. You each take the resulting agreement to your own attorney for review, but the negotiation itself is between the two of you with the mediator’s help.

In collaborative divorce, each of you has your own specially trained attorney, and all four of you meet together to negotiate. The defining feature is a written commitment not to go to court. If the process breaks down and either of you decides to litigate, both attorneys must withdraw and you start again with new representation.

What that difference means in practice

  • Advice. In collaborative practice you have your own advocate in the room throughout. In mediation you get that advice separately, outside the sessions.
  • Cost. Mediation is usually less expensive, because you are paying for one professional rather than two, plus any additional neutrals a collaborative team brings in.
  • The team. Collaborative cases often include a neutral financial professional and sometimes a coach or child specialist. Mediators may bring in specialists too, but the default team is smaller.
  • The commitment. The withdrawal clause in a collaborative case gives both attorneys a strong incentive to settle. It also means that if the process fails, changing lawyers is expensive.

Which tends to suit which situation

Mediation often works well where both of you feel able to speak for yourselves, the finances are reasonably clear, and you mainly need help structuring the conversation and testing whether proposals are workable.

Collaborative practice may suit better where there is a real imbalance in financial knowledge or confidence, where the assets are complicated enough that you want an advocate present as decisions are made, or where one of you would find negotiating directly too difficult without support beside you.

Neither is a soft option, and neither is a substitute for the other in every case. Many practitioners offer both and will tell you honestly which they think fits.

Availability differs by region. Collaborative practice depends on there being trained collaborative attorneys near you, which is common in some metropolitan areas and thin in others. The resources page points to the professional bodies that maintain practitioner directories.

Still weighing it up?

The comparison with going to court sets out the trade-offs that apply to both out-of-court routes.