Divorcing Without Court: What are the Differences between Mediation and Collaborative Divorce?
The decision to end a marriage is difficult. After deciding to separate, the next consideration is how you will go about settling issues such as division of family property, support, and parenting arrangements for your children. You can go to court to resolve issues and get a divorce. But there are other non-litigation options you may want to consider.
Getting a divorce without going to court
You can divorce without going to court by using one or more of these “alternative dispute resolution” options:
Negotiation: a lawyer with experience in divorce and family law matters can help you resolve issues with your spouse, and then prepare a binding separation agreement for you and your spouse to sign.
Mediation: a third party (the mediator) guides you and your spouse, acting as a facilitator to attempt to resolve conflict and reach a settlement. The mediator is neutral and has no power to decide issues if you and your spouse can’t agree. There is no requirement for you or your spouse to hire a lawyer to use the mediation process, but many divorces involve complicated legal and financial issues. Having a lawyer by your side at mediation can ensure your legal rights are protected and that anything you agree to is fair.
Collaborative divorce: each spouse hires their own collaborative divorce lawyer, and all participate in “four-way” meetings to discuss and negotiate. Before starting the process, all four parties must sign a “participation agreement” promising to work together to find solutions and agreeing that if collaborative divorce does not work, both lawyers must withdraw if the case heads to court.
What are the differences between mediation and collaborative divorce?
Both mediation and collaborative divorce are more informal, flexible, and private than the court process, and both are typically faster and much less expensive than litigation. There are some key differences, however, that you should consider:
- Neither spouse is required to hire a lawyer for mediation. But consider this: mediators give information, while lawyers give advice. A mediator can’t take sides. Do you feel capable of negotiating on your own if your divorce involves complex legal or financial issues?
- You and your spouse must each hire a lawyer to use the collaborative divorce process. However, if issues can’t be resolved, both of those lawyers are disqualified from representing the parties in court. Each spouse would have to hire a new divorce lawyer to represent them in the family litigation process.
- Collaborative divorce is typically more expensive because it is more of a “team” approach. Each spouse has their own lawyer, and it is common for other professionals to be involved to help with emotional and financial aspects of the divorce (for example, a counsellor/mental health professional or divorce coach; a child professional to help create a parenting plan; a financial specialist to valuate property or businesses assets).
- There is also the potential for increased costs if the collaborative divorce process is unsuccessful, as both spouses will have to hire and bring up to speed a new lawyer. If you are represented by a lawyer during mediation and can’t reach an agreement, that lawyer is not barred from taking your case to court. For that reason, you should hire a family law litigator (Prince George divorce lawyer Dick Byl is a skilled negotiator and has trial experience) if you opt to have a lawyer with you during mediation.
Time to reach settlement:
generally speaking, mediation is the faster option, though it can take several months and more than one mediation session to reach a final agreement on all issues. The collaborative divorce process involves more parties (spouses, lawyers, and any experts or other professionals); it can be challenging to coordinate schedules for team meetings so may take a year or more for the collaborative divorce process.
Which option is the best choice for your situation?
The best choice depends on your unique situation and needs. Mediation is typically the quicker and less expensive option of the two, and gives more control to you and your spouse. That being said, mediation requires that spouses be willing to cooperate and provide full disclosure. If there is a history of dishonesty, abuse or imbalanced power dynamics in your relationship with your spouse, collaborative divorce may be preferable. It is more structured, and the involvement of lawyers and other professionals can ensure accountability, insulating you to some degree from improper behaviour or controlling tactics of your spouse. Remember that mediation and collaborative divorce are just two of the options; negotiation, arbitration, or family court proceedings should be explored as well before you make your decision.
Reach out for advice on how to divorce
Dick Byl Law Corporation has guided clients through the challenging process of separation and divorce for nearly 40 years in Prince George. Family law is complex, and divorce can be extremely challenging on an emotional level. It is important to be prepared and understand your rights under divorce law. Please reach out to us to book your appointment today. Our divorce lawyer will work relentlessly to ensure a fair outcome that protects you and your financial future.