The Difference Between Collaborative Divorce, Mediation, and Litigation

If you and your spouse are considering a legal separation or divorce in Plaza-Midwood, North Carolina, it likely took both of you a long time to come to this decision. During the early stages of the process it is important to keep in mind that there are several more decisions that you both will need to address before your legal separation and divorce is finalized. One particularly important decision to make is the method by which you want to finalize your divorce. There are numerous options including traditional divorce litigation, divorce mediation, and collaborative divorce. The particular method and approach that is best for you and your unique situation will depend upon the particular facts and circumstances of the case. Not surprisingly, these are as unique as the parties involved.

Oftentimes the individuals’ preferences are the driving force as to whether a couple wants to resolve their marital dispute through traditional divorce litigation, divorce mediation, or collaborative divorce. The most common factors that can influence a couple’s choice include:

• Characteristics of traditional litigation divorce: When a couple chooses to resolve their marital dispute through judicial intervention, this is referred to as litigation divorce. The litigation process is commonly used in Plaza-Midwood divorce cases when the couple cannot resolve their differences through other alternative means. A traditional litigation divorce process involves a North Carolina judge making all decisions on issues relevant to the divorce. The judge’s decisions are recorded in a written court order – a final decree of divorce. The final divorce order is legally binding on the couple. Simply put, each must comply with the order’s terms - as written – whether they like those terms or not. Litigation divorce can be a significantly stressful, time consuming, and expensive process. Traditional litigation divorce puts the family’s affairs and disputes in the court system as public record for everyone to see, except under specific circumstances.
• Characteristics of divorce mediation: Divorce mediation does not necessarily involve attorneys, as the law does not require it. In divorce mediation, the couple attempts to come to an agreed-upon solution on all issues involving the divorce. This is done with the help of the mediator - a third-party neutral - who helps negotiate a divorce settlement. Unlike a judge, the mediator has no power to decide the case. Also, unlike traditional divorce litigation, the parties do not hire individual attorneys to advocate for them and engage in an adversarial dispute. Notably, the mediator’s role is not to provide legal advice but, rather, to help facilitate an agreement suitable to both spouses. Moreover, divorce mediation is often less formal than litigation and collaborative divorce and likely less expensive than the two.
• Characteristics of collaborative divorce: Collaborative divorce is a mix of traditional litigation divorce and divorce mediation. During collaborative divorce, the court is not involved until the end, when a family law judge approves the parties’ agreed-upon settlement. Collaborative divorce does, however, require the use of individual attorneys for each spouse. The spouses also jointly hire professional experts. Before starting the collaborative divorce process, the parties and their attorneys enter into an agreement not to go to court until they have collectively come to an agreement. If the divorce is not resolved during collaboration, the attorneys and any other professional consultants must withdraw representation. The spouses may then pursue litigation, however, they would need to acquire new legal representation. Collaborative divorce is often less formal, more efficient, and less expensive than traditional litigation.

There are many real and tangible benefits that can be realized from collaborative divorce. This includes ensuring each spouse has separate legal representation. This process also helps to even any power imbalance that may exist within the marital relationship. If one or more spouses want to have an attorney that is only looking out for his or her own best interests during each step of the negotiation process, then collaborative divorce is the best option. This method is also useful if the divorce involves complicated financial, legal, or other issues that the spouses do not feel comfortable handling themselves. That being said, even if the divorce is not very complicated, the couple may feel more confident and comfortable with the idea of having a professional attorney experienced in matters such as this with whom to confer and consult for advice at every step.

Collaborative divorce is helpful if a couple has had long-time relational dynamics that result in one spouse feeling at a disadvantage on certain issues. Indeed, the structure that comes with collaborative divorce can ease any distress that results from the typical divorce process. A collaborative divorce attorney can boost confidence in a client-spouse who has difficulty expressing concerns that are important to him or her. Likewise, a client-spouse who tends to overpower the conversation can be kept under control – as needed – by his or her collaborative attorney.

If you and your spouse think the collaborative divorce process might be right for you in Plaza-Midwood or any of the surrounding areas of Charlotte, Monroe or Mooresville North Carolina, or anywhere else in the state, contact the family law attorneys at Arnold & Smith, PLLC.