In Litigation, a win/lose adversarial court process which I call COMBAT DIVORCE, both clients retain attorneys whose focus is to prepare a picture of “reality” which will result in the best decision for their client by a judge. Often, this method includes denigrating the other party or his/her perception of reality. Trial is often compared to a battle, in which one side “wins” and one side “loses”. In some circumstances, litigation is the only option. For example, if the other party consistently hides information or is abusive, the formal procedures utilized in litigation may be the tools necessary to obtain an acceptable solution.
In Mediation, a non-adversarial process which allows you to stay out of court, a neutral professional assists the clients settle the dispute. Generally, the clients agree that all information will be shared and that they are seeking a “win-win” solution. The mediator often a Family Law Attorney does not represent either party and the clients do not go to court. Typically, the mediator recommends that each person meet with a mediation friendly family law attorney in a consulting or reviewing capacity. If the mediator is an attorney, she or he will be able to write up the agreements and submit them to the court to result in enforceable orders. Mediation with just the one neutral facilitator can work well for clients who have the ability to communicate their needs directly to the other person and who are sophisticated enough to understand the financial and legal information being provided. There is also the Interdisciplinary Team Mediation approach in which you can also have the benefit of adding other professionals such as a Family Communication Divorce Coach, a Neutral Financial Specialist chosen and agreed to by both parties to avoid the expense of "dueling experts" and when there are children a Neutral Child Specialist chosen by and agreed to by the co-parents to make sure children's needs are forefront, and avoid the expense and possible problems from competing child-custody evaluators. The added professionals can often save you time, trouble and expense usually created by bitter, angry and destructive battles.
In Collaboration another non-adversarial process, the positive qualities of litigation and mediation are combined in a no-court, non-adversarial process. Just as in litigation, both clients have independent attorneys who will give them personal legal advice and will advocate for their needs. In addition, the clients each have Divorce Coaches, and share a Neutral Financial Professionaland when there are children, a Neutral Child Specialist to assist them. Drawing from mediation, this Collaborative Team commits to an open information gathering process, a focus on finding solutions and a commitment to reach a settlement without going to court.
I am not an attorney so this is a general lay description, and should not be considered to be legal information or advice. For the legal details of each approach you should consult a Collaborative Family Law Attorney
Litigation is typically the most expensive of the options financially and emotionally, now and in the future. As an adversarial process, which emphasizes and focuses on the worst characteristics and nature of the clients, negative emotions and conflict escalate, and attorneys’ fees and costs mount. Disputes between former spouses/partners, i.e., the dirty laundry, are aired in public and hurt feelings solidify into long-term animosity. A total stranger in a black robe makes all your decisions for you sometimes even leaving the “winners” feeling more like losers.
Mediation is potentially the least expensive of the options in the short term. Financially, the costs are usually relatively less. And mediation when done in the InterdisciplinaryTeam Mediation model, helps minimize the emotional impacts for everyone, especially the kids. The clients are in control of the outcome. They reach settlement via consensus, so it is more likely they will be satisfied with the agreements made, understand them and honor them longer than those that may result from the stress and duress of litigation and the orders of the trial court.
Collaboration is potentially the best value of the three. The cost of Collaborative Divorce is estimated at 30-60% the cost of litigation, and it is typically more than the cost of mediation, but you get more. Since divorce is a legal, financial and emotional process, clients benefit from an interdisciplinary team of professionals. This team of Collaborative Professionals educates, guides and coaches the clients through the process of Collaborative Divorce to reach settlement.
Adapted with permission from Texas Collaborative Divorce