collaboration vs mediation

What’s the difference between Collaborative Divorce vs Mediation?

Collaborative Divorce vs Mediation

Understanding the difference between collaborative divorce vs mediation is crucial for couples considering alternatives to traditional divorce proceedings. Both approaches emphasize amicable resolutions and prioritize the needs of all involved, yet they differ significantly in structure, support systems, and strategies.

Divorce mediation is recognized and encouraged under the California Family Code, particularly Sections 3170-3188, it is a process where a neutral third-party mediator assists divorcing couples in reaching a mutually acceptable agreement on issues such as property division, child custody, child support, and spousal support.

Collaborative divorce is governed by sections 2013-2015 of the California Family Code as well as the Uniform Collaborative Law Act (UCLA), adopted by California to provide a standardized approach to collaborative divorce. It is the process in which all parties sign a written agreement to keep the matter out of court and negotiate the settlement in good faith using collaboratively trained attorneys. 

By delving deeper into each method, couples can discern which path may best suit their unique situation, leading to a smoother and more tailored resolution.

Structure and Nature

Mediation can be either voluntary or mandatory. In cases involving child custody and visitation, mediation is often required before the case can proceed to court. 

Collaborative divorce is always voluntary and cannot be mandated by the court. All parties sign a participation agreement, committing to the collaborative process and agreeing not to go to court. If the process fails, new lawyers must be hired.

Representation and 3rd Parties

A key difference between collaborative divorce vs mediation is the representation and 3rd parties involved. Mediation is run by a neutral third party who facilitates discussions and negotiations between the divorcing parties. This mediator does not take sides or make decisions but helps the parties communicate and reach an agreement.

Each party can have their own lawyer if they choose to. However, these lawyers typically play a consultative role, outside the mediation sessions. They advise their clients on legal matters, review agreements, and ensure that their clients’ rights are protected, but they are not usually present during mediation sessions unless both parties agree to have them there.  In addition, any 3rd party professionals involved need to be agreed upon by all parties and are only done so as needed for specific situations. 

Collaborative Divorce, on the other hand, involves a team-based approach. Each party has their own attorney who is actively involved in the process. These lawyers work together, along with other professionals, to facilitate negotiations and reach a settlement. All of these parties are integral parts of the collaborative team from the beginning. They all work together to address every aspect of the divorce.

Good Faith and Voluntary Disclosure

Both mediation and collaborative divorce rely on a cooperative and transparent environment where both parties willingly share relevant information to reach mutually acceptable agreements. Therefore, the discovery process generally relies on good faith and voluntary disclosure. 

One important difference between collaborative divorce and mediation, however, is that in mediation there is no formal commitment to avoid court. Therefore, parties can request court intervention to compel disclosure if voluntary efforts fail. This might involve filing motions to compel, issuing subpoenas, or taking depositions.

In Collaborative Divorce, If one party decides to pursue traditional discovery methods, it would typically break the collaborative participation agreement. This breach would likely terminate the collaborative process and lead both parties to hire new attorneys for litigation.

Control

Both collaborative divorce and mediation offer parties significant control over the process and outcomes compared to traditional litigation. However, there are key differences in how this control is exercised in each structure

Mediation offers more direct control over the process, with parties negotiating directly and making decisions without intermediaries. Additionally, the process is more flexible and less formal than collaborative divorce. Sessions are scheduled as needed, and the process can adapt to the parties’ needs and timelines. Whatsmore, there is no formal commitment to avoid court, and mediation can be a step in a larger litigation process.This flexibility and less formal structure allow for a highly customized approach.  

Collaborative Law provides substantial control but within a more structured and guided framework. While parties have significant input and control, the presence of the collaborative team means that some aspects are guided by professionals. This can be beneficial for managing complex issues but can also mean less direct control compared to mediation.

The structured nature of collaborative divorce and the commitment not to go to court provide a framework that encourages cooperation and thoroughness. However, this commitment can restrict the parties involved a bit, especially if they feel the need for court involvement since they would not be able to involve the courts without breaking the agreement and finding a new lawyer. 

Cost of Collaborative Divorce vs Mediation

Another big difference between Collaborative divorce vs mediation is the cost. While both are typically much cheaper than traditional litigation, the two processes can have significantly different price tags. 

Generally speaking, with mediation, the only fees involved are the mediators fee plus any court filing fees. Mediators may charge an hourly rate or a flat fee for their services, depending on the complexity and duration of the mediation.These fees are usually shared equally by both parties unless they agree on a different arrangement.

Collaborative Divorce can be significantly more expensive due to the additional parties involved. One major additional expense is the attorneys.  Each party pays their own collaborative attorney who’s fees can vary widely depending on the attorney.  In addition to the attorneys, the collaborative process often involves multiple professionals, which can make it more expensive than mediation due to the cumulative cost of all the services. The collaborative participation agreement will often outline how these costs are to be divided, typically equally unless otherwise agreed. Sometimes, mediation can have 3rd parties as well, but this is less typical and, even then, the professionals are usually not as involved and therefore often cost less.

Collaborative Divorce vs Mediation: Which is Better?

While both mediation and collaborative divorce aim to resolve disputes amicably and outside of court, they differ in their structure, the roles of lawyers, and the level of formality. Mediation is more flexible and involves a neutral mediator, with lawyers acting as advisors. Collaborative divorce involves a more structured, team-based approach with lawyers and professionals actively working together and a strong commitment to resolving issues without litigation. 

Of course price can be a determining factor as well. Both mediation and collaborative divorce involve costs for third-party professionals, and these costs are generally borne by the parties involved. Mediation tends to be more flexible and may be less expensive overall, while collaborative divorce involves a more structured team approach that can provide comprehensive support but at a higher cost. Clear agreements and effective cost management strategies are essential to handling these expenses in both processes.

Ultimately, the choice between mediation and collaborative divorce depends on the specific needs and dynamics of the parties involved. If direct control and flexibility are paramount, mediation may be the better option. If a more structured process with professional guidance is desired, especially for complex situations, collaborative divorce may be more suitable.

Need Mediator or Collaborative Lawyer?

If you need a legal mediator or Collaborative Law Attorney in Los Angeles or Orange County, contact Jafari Law and Mediation Office for a consultation. Let us help you find a path to resolution with the compassion and assertiveness you deserve. Contact us today for your consultation.

FAQ

Yes, collaborative law can be applied to a variety of disputes beyond divorce, including business partnerships, labor disputes, and other civil matters where parties seek to preserve relationships.

If parties cannot reach an agreement in collaborative law, they may need to resort to litigation. Often, this requires hiring new attorneys since collaborative lawyers agree not to represent the parties in court.

Yes, agreements reached and properly documented during mediation can be made legally binding through a court order or by drafting a contract that is legally enforceable.

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