How is Collaborative Divorce Different Than Litigation and Mediation?

By Tiffany M. Alexander, Esq.

Current times are leading many people to believe that they must wait to proceed with a divorce. But just because the Court system is “on hold”, your life and your choices do not have to be. There is more than one way to proceed with a divorce or resolution of a family law matter. The typical and more well-known process is litigation. Litigation involves parties filing motions and petitions, appearing in Court before a Judge, and participating in evidentiary hearings or testifying regarding the family issues. In litigation, a Judge decides the fate of you and your family based upon the evidence that is presented within procedural rules and limitations. The legal system was not designed for the emotions and sensitivities of a family and yet many parties choose to litigate in court in the absence of understanding better options. Litigation is not ideal or necessary for many family law issues.

Alternative Dispute Resolution is frequently a better fit for resolution of family law matters, such as mediation and collaboration. The misconception about these other processes is that the parties need to be “mostly” or completely agreed. In fact, even contentious cases can proceed through alternative dispute resolutions. Oftentimes, the only thing that couples have in common in mediation or collaboration is an agreement to avoid a courtroom and to resolve the matter in a conference room. That joint goal is usually all it takes to be successful.

Mediation involves parties working with a neutral third party to come up with terms of their final agreements. Mediation can include the parties’ attorneys or just the parties alone with the mediator. The mediator can be an attorney or a mental health professional – both of whom are well versed specifically in the sensitivities and issues relevant to family law matters. If the parties are more contentious, then it may take multiple mediation sessions to reach a settlement. The parties’ obligations are to resolve disagreements on their own with the guidance and support of a mediator, rather than be subject to decision made by a judge who knows little to nothing about the parties, the children, or the family unit. Once final terms reached, a final agreement is drafted by one of the parties’ attorneys and then approved by the Court. If mediation is unsuccessful then the parties proceed to Court to litigate before a judge. Mediation is a better alternative to litigation if it can be successful.

Collaboration also aims to assist parties to reach their own resolution outside of Court. However, beyond mediation, collaboration involves a team of professionals all working with the parties to reach a resolution that is best for the family and which accomplishes the goals of both parties. Although each party has counsel, both attorneys work with each party to ensure that both parties are heard and their goals considered. Each case includes at least one mental health professional who serves as the coach for the team. Additional neutral third-party professionals such as accountants, business valuators, and child professionals can also be a part of the team depending upon the issues in a particular case.

An additional component that drives the collaborative model to be more successful then mediation is that if either party chooses to terminate the collaborative process, all professionals must cease representation of the parties and involvement in the case immediately. Once the process is terminated both parties must hire new attorneys, and individual experts, and start the process all over from the beginning. Terminating the collaborative process has enormous financial and emotional impact on a family that is not easily overlooked. It is this simple nuance in collaborative law that oftentimes keeps contentious parties involved at the most difficult of times because the alternative of terminating the process is far worse.

Collaborative Divorce is for those couples who are willing to and can handle sitting at a conference room table with their ex-partner. Collaborative Divorce is for those couples who want to preserve some semblance of humanity and shield their children from a bitter fight. Collaborative Divorce is for those couples who want to own the conclusion of their family law matter rather than turn over their personal lives and livelihood to be determined by a Judge.

The collaborative process does not center around dollar signs and the number of overnights but instead focuses on the individuals and the family to reach successful conclusion. A successful collaborative divorce is not just a solution that leaves both parties equally unhappy, but rather leaves both parties in a position of accepting and respecting the final terms because it was a solution that the parties designed.

When considering options for how to proceed with your family law matter it is essential that you speak to your potential counsel about how your specific case and issues relevant to your case can be best addressed in litigation, mediation, and collaboration.

Tiffany M. Alexander, Esq.

Partner, Litigator, Mediator, Collaborator

Strategic Divorce

900 N. Shore Dr. Ste. 220

Lake Bluff, IL 60044

(847) 234-4445

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