By Patricia C. Van Haren,
Collaborative Attorney and Mediator, Irvine CA
Divorce is never easy, and the process of ending a marriage can be particularly challenging when it comes to resolving disputes. Traditionally, the only way to resolve divorce disputes was through divorce litigation, with each party represented by a lawyer. The attorneys would then present arguments to the court and a judge would decide the issues in the divorce case. Fortunately, today there are many alternatives to litigation, such as mediation and collaborative divorce. In this article, we’ll explore the differences between divorce litigation and other forms of consensual dispute resolution such as mediation and collaborative divorce.
Divorce Litigation
Divorce litigation is the traditional approach to resolving disputes related to a divorce such as property division, child custody, support, and other issues. In this approach, each party hires an attorney to represent them in court. The attorneys advocate for their client’s interests, and a judge ultimately decides the outcome of the case. Typically, a litigated case can take several years to be completed.
In divorce litigation, the parties have limited control over the process. The judge is the ultimate decision-maker, and the parties must accept the court’s ruling, even if it is not what they wanted. Most people leave a litigated case feeling unhappy with the outcome. Additionally, litigation can be a lengthy and expensive process, with legal fees, court costs, and expert witness fees adding up quickly.
Divorce litigation can be a lengthy, expensive process, with each party arguing on their side. Often a couple will spend more money on attorney fees than the value of the assets that they are arguing about. The adversarial nature of litigation can make it challenging for the parties to maintain amicable relationships, which can be especially difficult if they have children together. The way that the spouses conduct themselves during the divorce will set the tone of their interactions for years to come. Children whose parents are in litigation will often spend the majority of their childhood with parents that are unable to have positive interactions with each other. The damage to children in litigations is immeasurable.
Both mediation and collaborative divorce aim to create a peaceful, mutually beneficial resolution to divorce. However, they differ in their approach and the extent to which they involve the professionals that are there to assist the spouses.
Mediation
Mediation involves a neutral third-party mediator who helps the divorcing couple reach a mutually agreeable resolution. The mediator doesn’t make decisions for the couple but rather facilitates discussions to help them work out their issues. Mediation can cover all aspects of a divorce, from the division of assets and property to child custody and support.
Mediation is generally less expensive than traditional litigation because it doesn’t require lawyers to do the negotiating and the parties are not wasting time in court. Instead, the mediator helps the couple communicate and compromise, with the goal of reaching a mutually beneficial agreement. Additionally, mediation can be a faster process than litigation since it doesn’t involve scheduling court dates and waiting for a judge’s ruling or several return hearing dates for the court to give additional evidence.
One of the benefits of mediation is that the couple has more control over the outcome. The mediator doesn’t make decisions for them, so they have more say in the terms of their divorce. Additionally, mediation is a less confrontational process, which can be beneficial for couples who want to maintain an amicable relationship post-divorce. Mediation focuses on what is best for the children and the family rather than focusing on winning or losing like the litigated case.
Collaborative Divorce
Collaborative divorce is another alternative to traditional litigation that emphasizes cooperation and communication. Unlike mediation, however, collaborative divorce involves each spouse hiring their own attorney to represent them during the process. The attorneys and the parties will sign an agreement to keep the case out of court and there is the understanding that the attorneys will not represent them in court. The couple will often hire additional professionals to be on the team. Unlike litigation and similar to mediation, the focus is still on collaboration, and the attorneys are there to help the couple reach an agreement that works for everyone.
During the collaborative divorce process, the couple and their attorneys meet in a series of meetings to discuss important issues and to help the family structure their life after the divorce is finalized. Like mediation, the goal is to reach a mutually beneficial agreement without going to court. The attorneys can help the couple communicate effectively and work through any issues that arise. Additionally, other professionals, such as financial advisors or child psychologists, may be brought in to help the couple reach a resolution and to teach them skills such as co-parenting.
One of the benefits of collaborative divorce is that it can be more flexible than mediation. Each spouse has their own attorney who can provide them with personalized advice and guidance. Additionally, collaborative divorce can be a more thorough process since each party has an advocate who can help them navigate the legal system and help them to explore options for settlement. As the collaborative Process is a team approach the spouses will also have the use of a Financial Neutral as well as a Coach or Child Specialist to aid them in getting through the emotional issues which may be a block to resolving the case.
When it comes to resolving disputes related to divorce, mediation and collaborative divorce are two popular alternatives to litigation which is the traditional adversarial process. While these two approaches may have some differences, they share some very important similarities, and each are substantially different than Divorce Litigation.
Voluntary Participation
Both mediation and collaborative divorce require voluntary participation from both parties. This is why these approaches are referred to now as consensual dispute resolution. Neither approach can be imposed on either spouse and neither spouse can be forced to come to agreements in the process. Both parties must agree to participate in the process, and they must be willing to work together to reach a resolution and maintain a commitment to resolve their issues without court. Litigation only requires one of the spouses to proceed and the Court will make decisions with or without the involvement of the other spouse.
Confidentiality
Confidentiality is an important aspect of both mediation and collaborative divorce. Both approaches require that all discussions and negotiations that take place during the process remain confidential. This means that anything discussed or disclosed during mediation or collaborative divorce cannot be used against either party in court. Further, the mediator and all professionals on the collaborative team are unable to be called to testify in court and they are not able to represent either party in court. Litigation is very public and all documents that are filed become part of the public record. This includes financial documents and statements that each spouse makes about the other one.
Focus on Communication and Cooperation
Another similarity between mediation and collaborative divorce is their focus on communication and cooperation. In a litigation case, the parties rarely communicate and most of the communication is combative and done through attorneys. Both mediation and collaborative divorce prioritize open and honest communication between the parties. The goal is to help the parties work together to find solutions that are mutually beneficial. This ability to communicate and cooperate during the process will guide the parties in years to come just as the hostile and conflictual communication of litigation will continue long after the divorce is finalized.
Control over the Outcome
Both mediation and collaborative divorce give the parties more control over the outcome than traditional litigation. In both approaches, the parties work together to reach a mutually acceptable agreement. They are not bound by the decisions of a judge and they have the ability to create an agreement that works for both parties and most importantly their children. In litigated cases, all the parties are left to the decisions made by a Judge with no personal knowledge of their family. In divorce litigation, the judge ultimately decides the outcome of the case. In consensual dispute resolution, the parties have more control over the process and are able to work together to find a solution that works for both of them.
Lower Costs
Divorce litigation can be a costly process, as it requires both parties to hire lawyers to represent them in court. Mediation and collaborative divorce, on the other hand, are generally less expensive. In mediation, the parties may not be using lawyers and in the collaborative process, although there are attorneys, they work together instead of against each other. Both mediation and collaborative divorce are generally less expensive than traditional litigation. In both approaches, the parties are able to avoid the high costs associated with hiring attorneys to represent them in court. Litigation attorneys will often spend hours in court during a hearing which may take 15 minutes. As the parties are paying for the attorney’s time and the attorney cannot work on other cases, the client is paying for all that time spent in the courtroom. When the parties participate in collaborative divorce and mediation, the attorneys are spending time on their case directly and there are no long waiting periods for a judge to call the case. Divorce litigation can be a lengthy process, with court dates often being scheduled months in advance. Mediation and the collaborative divorce process, on the other hand, can be a faster process, as the parties are able to schedule meetings with the mediator or the collaborative team at a time that is convenient for them. Additionally, both mediation and collaborative divorce tend to be faster than litigation, which means that the parties can resolve their dispute more quickly and with less expense.
Creative Solutions
Finally, both mediation and collaborative divorce encourage creative solutions to disputes. In both approaches, the parties are able to think outside the box and come up with unique solutions that may not be available in traditional litigation. A judge will not look outside the box or help parties to have creative outcomes that benefit the family. The ability to have creative solutions is especially beneficial when it comes to issues like child custody. Property division and support, where the parties may be able to create a customized solution that works best for their family.
Expert Involvement
In divorce litigation, expert witnesses may be called to provide testimony on issues such as property valuation or custody arrangements. In collaborative divorce or mediation, experts such as financial planners or child specialists may be involved, but their role is to work with the parties to find solutions that work for everyone including the children, rather than advocating for one party’s position. Further, in litigation, each side may have their own expert whereas professionals used in collaborative divorce and mediation are hired as neutrals to work with the parties.
Adversarial Nature
Divorce litigation is an adversarial process, with each party hiring an attorney to represent them in court. Even in communications between court hearings the nature of the discussions between the attorneys is adversarial with each asserting their client’s position rather than working together to find an outcome that works for everyone. Mediation and collaborative divorce are problem-solving processes that have the parties working together to find a solution that works for both of them and more importantly their children.
Divorce litigation is the traditional approach to divorce resolution. In this process, each party hires a lawyer to represent their interests in court. The lawyers argue for their clients, and a judge ultimately makes decisions about how the divorce will be settled.
While divorce litigation and consensual dispute resolution processes may have some similarities, they differ in several key ways. Divorce litigation is an adversarial process in which each party hires an attorney to represent them in court, while the collaborative divorce process is a more cooperative process in which the parties work together to find a solution that works for both of them. If you are considering divorce, it’s important to understand all of your options and choose the approach that works best for your unique situation. A qualified family law attorney can help you understand your options and make the best decision for you and your family.
Patricia has been a practicing attorney since May of 2011. She went through her own divorce when her three children were very young. During that time, she was working as a paralegal and used those skills to assist her in preparing her own documents to present to her attorney.
Patricia understands the challenges of going through a divorce and understands that no matter who decides that it is time to ultimately end a marriage, the process can be a difficult and painful one. Patricia strives to assist her clients in getting through the divorce process with the least pain possible. She also understands the challenges of raising children without a partner and seeks to assist families in transitioning to co-parents from being a couple.
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Email: patricia@pcvlawyer.com
Tel: 949-891-0091
