I am seeking a divorce in New Jersey. What is the difference between collaborative divorce and mediation?

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Many people think that collaborative divorce and mediation are the same process, but they are not. They do have similarities. Both collaborative divorce and mediation seek to reach a mutually acceptable agreement in a respectful, private way that avoids the cost, delay and public nature of litigation. Both methods of resolution can address child custody, child support, spousal support, the division of property and virtually every issue that can arise in the divorce process.

In mediation, you, your spouse and a neutral professional (the mediator) try to come to an agreement. The mediator may be a lawyer, licensed mental health professional, accountant or financial planner, but he or she does not provide legal advice or advocate for either you or your spouse’s desired result. Some clients meet with a mediator while retaining their own attorneys to consult with outside of the mediation sessions. In some cases, one or both of the attorneys may attend the mediation sessions, but the mediator remains in charge of the process. In mediation, disclosure is expected, but it is voluntary. Mediation can be entered into voluntarily or it can be ordered by a court in an attempt to encourage parties to resolve differences themselves and avoid costly court processes. In the case of domestic abuse, a court may not allow the option of mediation.

In collaborative divorce, you and your spouse are represented by your own attorneys, who you retain for the specific purpose of settling your case out of court. You, your spouse, your attorneys and any other professionals you deem necessary to assist you all contribute to an exchange of ideas to identify and resolve issues in an open forum. This approach makes it difficult for anyone to pursue a hidden agenda. The collaborative process acknowledges that it is possible to advocate for our clients without being adversarial. Unlike mediation, a collaborative divorce has no one person directing the communication or the process. Lawyers and clients all participate in determining the course of negotiations. In collaborative divorce, disclosure is mandatory. In fact, if one party withholds information, the collaborative process terminates and, if the case goes to litigation, both parties’ attorneys must withdraw from further representation.

The cost of mediation or collaborative divorce case is generally substantially less expensive than cases that are taken to court. Mediation is potentially less expensive than a collaborative divorce. At the same time, collaborative divorce is often more satisfactory and productive for the participants. You are assured of getting the assistance needed to succeed, while avoiding costs associated with unproductive fighting.

If you are considering mediation or collaborative divorce, please call our offices to schedule a consultation. And, if one of these options does not suit your case, we are skilled and prepared to litigate your divorce in court.

Answered 03/24/2014

Disclaimer: This answer was provided by an attorney selected to Super Lawyers, and is intended to be an educated opinion only. This answer should not be relied upon as legal advice, nor construed as a form of attorney-client relationship.

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