In recent years, a new concept for reducing the costs and the emotional wear and tear of divorce has emerged called the “collaborative divorce”. In this regard, it shares many of the same goals as divorce mediation. But, there are some important differences.
In a collaborative divorce, each party is represented by an attorney, but both the attorneys and the parties agree up front that they will find a way to settle the case and not go to trial.
Each side then prepares their case, conducting their own discovery (i.e. fact-finding), hiring their own experts, and obtaining the documents and other information they need. With the commitment to settling the case, rather than trying it, the attorneys and the parties will likely meet together multiple times to share information and proposals, more so than in the traditional process, in the hopes of reaching a settlement.
Divorce Mediation Usually Saves More in Fees Than a Collaborative Divorce
If the collaborative approach works as desired, it should result in less total cost to the participants than the traditional approach where the attorneys and parties are more adversarial. And, it should be less draining emotionally and psychologically as well. But, these benefits are likely to be far less advantageous than those that accrue from divorce mediation, simply because there are still two attorneys to pay, and their role is to represent just one party rather than to mediate between them.
But, a collaborative divorce comes with one very big risk. What happens if the parties are unable to settle the case despite their promise to do so? The answer is that they have to start over. They must retain new counsel, they must hire new experts, and in some situations they may need to conduct new discovery. Much of the time and money spent goes for naught.
Such is not the case when a divorce mediation fails to reach completion. (And in 13 years mediating divorces, Cythnia Fox has only had two couples that failed to complete the process out of the dozens of cases she has mediated.) Whatever has been achieved up until the mediation ends can be used if the couple then decides to go forward with the traditional approach. All the information and expert opinions gathered up until that time can still be used; any lawyers that have been retained by either participant can remain on the case. Only the mediator is disqualified from representing either of the parties individually.