In the English language, the two words ‘mediation’ and ‘collaboration’ mean something fairly similar, so it’s probably not any surprise that, when it comes to divorce, people really don’t understand the difference.
I find it happens pretty often in conversation that people confuse or conflate the two, and it’s really no wonder. In general, people don’t know much about the different “types” of divorce (I use quotes there, because there’s not really so much different types of divorce as there are different methods) or what options are available to them.
It always seems like such a shame to me, because I’m of the opinion that women should have all the information at their disposal so they can make a carefully calculated decision designed to yield the results that they’re after. I find that often doesn’t happen in divorce, for a number of reasons. For one thing, people don’t know the questions they should be asking so they don’t end up making decisions from an informed place. For another, they don’t think carefully enough about the attorney they meet with. And, for a third, they’re upset, scared, and overwhelmed, which doesn’t exactly put a person in a good headspace when it comes to careful reflection.
It’s a combination. There may be some more reasons, too, but the reasons don’t really matter as much to me as the solutions do. And the solution is to make sure more information gets into the hands of the women who need it, so they can use it to make the best decisions possible for themselves and their families.
I’ve said it before and I’ll say it again: there are only two ways to get a divorce in Virginia. You either get divorced in court, by a judge, or you get divorced by agreement.
Getting a litigated divorce in Virginia circuit court
Getting a divorce in court is what we call a litigated divorce, because litigation is what happens when you go to court. Attorneys litigate the issues, and the judge gives a decision which becomes an order that governs the way the divorce will proceed. Litigated cases are (1) more time consuming, (2) more expensive, and (3) less likely to yield results that look anything like what you might have wanted for yourself.
Getting an uncontested divorce by agreement between the parties
The alternative is to reach an agreement. Now, if you negotiate an agreement with your soon-to-be ex husband, there are a number of ways to get that agreement in place: negotiation (with or without lawyers), mediation, and collaboration. They’re all different methods of getting an agreement in place. The end result – the separation agreement – is the same, but each method takes a slightly different path to reach that desired end result.
This kind of divorce is an uncontested, no fault divorce. In general, these proceed by affidavit in the circuit court and, in many cases, the parties don’t even need to show up.
I’ve written a ton about negotiation, but that’s outside of the scope of today’s article. Today, I want to talk about the most often confused options: mediation and collaboration.
Why would I want to consider mediation or collaboration?
In general, people turn to negotiating an agreement in an effort to avoid the time, expense, frustration, and unpredictable results associated with a litigated divorce. These people want to save time and money, not hate each other (especially if they have to coparent together) at the end of everything, and ultimately have more control over the way assets, liabilities, and responsibilities are divided thang going to court would allow them.
Though there are some reasons you might have to go to court, there are lots of reasons you’d probably want to try to avoid it if at all possible.
The reasons for trying mediation and collaboration are usually similar – to have more control over the results and to spend less time and money getting there – but the methodology is actually pretty different. (More different than the names of these methods would have you believe!)
Divorce mediation is handled by a mediator, who is a neutral third party. The mediator is sometimes also an attorney, but it doesn’t really matter – he or she is not employed in his or her capacity as a lawyer. The mediator will not educate you on your rights and entitlements, advocate for you, or discuss advantages and disadvantages of a particular course of action.
The mediator is JUST there to help you reach an agreement.
In many cases, the mediator writes up the agreement, too. This is also somewhat risky because, as we’ve mentioned, the mediator is often NOT an attorney. The way I see it, an attorney has two jobs: (1) to get you divorced, and (2) to minimize problems later on down the line. A well crafted agreement SHOULD mean that you don’t wind up going to court to re-litigate the same issues over later (with the exception of custody, visitation, and child support, which are modifiable based on a material change in circumstances). A poorly drafted agreement may get you divorced today, but you may find that you end up spending way, way more later on down the line to defend it or to try to overturn it.
Collaborative divorce is handled by a team of professionals. Each party hires their own collaboratively trained lawyer, but the team also includes a divorce coach for each party, a financial specialist, and a child specialist. (You can exclude some members of this team if the issues aren’t applicable to your case, or if you don’t want to employ them – but you should talk to your collaboratively trained attorney about this before you make any sweeping decisions.)
A main tenet of collaborative divorce is a pledge not to go to court. In fact, if things DO fall apart (which doesn’t happen often) and the parties end up having to litigate their case, they have to hire new attorneys to do so. The collaborative lawyers can’t take the case to court.
Collaborative divorce is guided mostly by the clients themselves, and they are encouraged to come up with creative solutions that meet their specific needs and the needs of their family. It may SOUND like negotiation with an attorney, but it’s actually really different because the parties have so much more room for coming up with creative solutions.
When the threat of court is looming over negotiations, one party or the other usually has the other over a barrel. They know the court would do something specific if the issue went to court, so they hold the other party’s feet to the fire. It often means that then the other party holds their feet to the fire over the next issue, in retribution.
We wind up with lots of agreements that look fairly similar to each other, and bear a lot of resemblance, too, to what would have happened if the case went to court. (But we do still spend a lot less money to get to that point!)
Which is better – collaborative or mediation?
While both methods certainly have their place, mediation always concerns me. It’s not to say that mediation can’t be a good option – it certainly can – but it can also be a method that allows an abuser to continue to be abusive.
I find that mediation is a difficult way to proceed, especially if there’s an uneven balance of power between the parties. There’s a lot of opportunity for bullying.
There’s also still a pretty big opportunity for agreeing to less than you deserve just because you don’t know or understand the extent of your rights and entitlements. Since the mediator won’t help you there, you have to be pretty confident going in about what you want and what you should receive – and your husband has to be able to hear and agree to it.
In general, it’s wise to meet with an attorney before mediation and again after mediation – just to make sure that you know what to ask for going in, and then to review your agreement before you sign it. Sure, it’s a couple extra steps, but it helps ensure that you’re in the best position possible to advocate for yourself.
There are mediations that can take place with an attorney present, too, so that might also be a question worth asking your spouse before you get too far along the path. In general, it’s really beneficial to have someone there to help educate you and make sure that you’re not giving up too much in an effort to be conciliatory.
It’s not that one is better than the other, necessarily, it’s that you should have the options available to decide what will work best for you. Everyone wants to save money, but not at the expense of the results of the case.
For more information, or to request an appointment with one of our attorneys, give our office a call at 757-425-5200.