This is a question that comes up regularly in my consultations with new clients. As a certified family law mediator and trained collaborative practitioner, I am a proponent of both and see the many advantages of each of these out of court processes.
Both options are typically less adversarial, less expensive, faster and offer more flexibility than going through the court process, however, there are some differences to consider when choosing which path is right for you and your family matter.
Mediation
In mediation, the parties will retain a neutral third-party mediator who helps to facilitate discussions between the parties with the goal of reaching a resolution on the various issues arising from the separation.
Mediation is a voluntary process and may be terminated by either party at any time.
Mediators may not provide legal advice to either party, although they can provide information and help parties understand legal issues including division of family property and debts, parenting arrangements, child support and spousal support.
For mediation to be successful, there should be a willingness by each party to compromise and be reasonable in their expectations.
Parties may attend mediation with their own lawyers present or without. In the latter circumstances, once a resolution has been reached between the parties, it is recommended that each party obtains independent legal advice before finalizing the agreement. The objective here is for the parties to have a clear understanding of what their respective rights and obligations are pursuant to the law before signing off on a final agreement.
Collaborative Divorce Process
In the collaborative process, each party retains their own collaborative lawyer to guide them through the process. Financial experts, divorce coaches and child specialists may be involved to work with the parties and their lawyers to help come up with resolutions to address the various issues in the context of each family’s circumstances. This process is also voluntary.
When entering the collaborative process, the parties and their lawyers sign a participation agreement pursuant to which they agree to negotiate in good faith, make best efforts to reach a fair and equitable settlement and not go to court.
If a final agreement is not reached and/or the process is terminated and the parties proceed to court, each party must retain new counsel.
Overall, both mediation and the collaborative process generally minimize the level of conflict and stress for parties, which is always an important factor to consider, particularly when there are children involved.
