Collaborative Divorce Vs. Mediation: Which Is Right For You And Your Spouse?

Collaborative Divorce and Mediation are Alternative Dispute Resolution (“ADR”) methods that can enable divorcing couples to preserve resources and avoid costly litigation. Especially when children are involved, parents will have a common connection forever and therefore, how parents effectuate their divorce can have lasting impacts on a family. Since there are critical differences between the ADR options, it is important to learn which method is right for you and your family. 

What is a Collaborative Divorce?

The Collaborative model utilizes a team approach consisting of two collaboratively trained attorneys (one for each party) as well as other neutral professionals as the parties deem appropriate. The neutral professionals may include divorce coach(es), a child specialist and/or a financial neutral. The team approach is the hallmark of the collaborative process, with each team member having distinct roles as follows:

• The attorneys act as their respective client’s advocate, advisor and negotiator. They will ultimately draft the legal documents that reflect the agreements reached. 
• Divorce coaches are the mental health experts that keep the case moving forward and help to shepherd the parties and the attorneys through the process and work through various “soft” issues that arise during the process. Divorce coaches are most notoriously beneficial in assisting with proper approaches to communication which is key to collaboration. 
• A child specialist may be employed to facilitate agreements regarding complex parenting disputes such as issues surrounding special needs children, split parenting time arrangements, challenging decision-making issues, and arrangements for children with ongoing health concerns.
• A financial neutral is important if there are financial issues such as a business valuation, non-marital property or complex streams of income from employment or other sources.

Pursuant to the Uniform Collaborative Law Act passed in 2017 in Illinois and Supreme Court Rule 294 which supports the Collaborative process and dictates what a collaborative lawyer can and cannot do, the parties must sign what is termed a Participation Agreement (“PA”). The PA sets forth the Collaborative ground rules which includes full disclosure of all relevant and necessary information needed to complete the divorce process as well as a disqualification provision. The disqualification provision states that if the collaborative process breaks down and no agreement is reached, all of the professionals must be discharged. ­The parties are required to retain new counsel and new experts when they proceed in litigation. ­The work product generated in the collaborative process is also prohibited from being utilized in litigation, which is the lynchpin of the process. By eliminating the option of going to court, the parties are incentivized to resolve issues in the process and allows everyone to focus on the goals and interest of the parties rather than taking extreme positions and eventually finding a middle ground three years later.