What’s the Difference Between Mediation and Collaborative Divorce?
- In a Collaborative Divorce You and your spouse each have your own attorneys in a Collaborative Divorce, who provide legal advice and advocate for your individual interests. You may also have a financial neutral and a mental health neutral(s) and child specialists as part of your divorce team. The Team is specially determined based on the individual family’s needs and goals.
- Mediation uses a neutral professional mediator who guides the parties through various topics to work towards understanding and then alignment of the various issues that must be resolved in divorce. It can be attorney-assisted, or simply the spouses with the neutral mediator. Mediation may work well if you and your spouse have an equal knowledge and understanding of your marital estate (assets/liabilities and incomes), and are on the same page for most or nearly all of the financial and parenting issues.
- While both methods are confidential, chosen out of court resolution options, Collaborative Divorce provides more support if you have parenting concerns or differences, complicated financial assets or issues, or different levels of understanding relative to the financial circumstances of the marital estate.
How Does Mediation Work in an Illinois Divorce
If you select Mediation, a neutral mediator will meet with you in a series of meetings to guide you and your spouse through the issues that need to be resolved. The mediator identifies topics that need attention, organizes discussions, keeps notes of agreements, and works with you and your spouse to develop options for settlement. The mediator will also prepare a Memorandum of Understanding once all agreed terms are reached and mediation is complete. This document is the basis for drafting the necessary legal documents to obtain a divorce.
If you participate in attorney-assisted Mediation, you and your spouse each have your own attorney, along with the mediator. In Illinois, a mediator is prohibited from providing legal advice to either spouse even if that mediator is also a licensed attorney because both of the spouses are the mediator’s client and that would be a conflict of interest. Instead, the mediator facilitates the discussion and assists you in reaching your own decisions by ensuring an equal understanding of the marital estate, potential options for settlement, guideline calculations for spousal and child support.
When Mediation Can Be a Good Fit
Mediation will work well if you and your spouse both already have a substantial understanding of your finances, assets, debts, and income. It will also fit well if you already have a general agreement about parenting time, holidays, and how you want to raise your children. A substantial amount of trust and mutual respect go a long way towards making the mediation process effective and smooth.
For example, you may agree that you want to sell the marital home, divide retirement accounts, and follow a mutually chosen parenting time schedule. You may simply need guidance on the details and how to put your agreements into a final parenting plan and marital settlement agreement and a mediator can work in a neutral way to get you everything needed.
When Collaborative Divorce Can Better Meet Your Needs
Collaborative Divorce provides additional support should you and your spouse have different levels of financial knowledge, or if one of you handled most of the financial matters during the marriage. The financial neutral can assist with gathering and understanding financial information, while your attorney will provide legal advice about your options. The divorce coach(es) can held set up the parenting plan while addressing ways to optimize your communication and co-parenting skills in the future so your children will transition into two homes with peace and security.
The Collaborative process provides much needed support if you or your spouse owns a business, have self-employment or variable income, special types of compensation such as restricted stock units, investment real estate, multiple retirement accounts, or questions about the tax consequences of dividing property. It is also useful if you want one spouse to keep the marital residence and need to determine how the other spouse will receive their share of the equity.
Collaborative Divorce will also be better than mediation if you have concerns about being able to have an even-handed conversation with your spouse without an advocate on your side, questions about the financial estate, or heightened emotions that you want to keep out of your decision making. You will have your own attorney throughout the process, giving you a place to ask questions and understand how proposed agreements affect you.
Which Divorce Process Is Right for You?
Neither Mediation nor Collaborative Divorce is automatically better. The right choice depends on what you and your spouse need to reach a lasting agreement outside of court. Mediation will make sense if you already agree on many major issues and primarily need assistance working through the details. Collaborative Divorce gives you a broader team and more individual legal and financial support when your circumstances require it. You can get a better understanding of what may best meet your needs by consulting with a Collaborative professional who is also a mediator.
FAQs
Not typically, but it can be in some circumstances. Mediation and the Collaborative Divorce process are separate methods for resolving divorce matters outside of court. At times, a hybrid approach of Mediation and Collaborative Process can be extremely effective at helping parties reach agreement. This happens when either a Collaborative team agrees to bring in a mediator to lead all meetings/discussions or when a mediator determines the spouses may need more support from individual advocates and refers them to Collaborative counsel.
You can have your own attorney in the mediation process, but whether he/she is in the mediation session with you depends on the type of mediation. In traditional Mediation, the mediator works with you and your spouse developing options for a settlement and discussing without attorneys in the room. Attorney-assisted Mediation has each spouse’s attorney in the room with the mediator, but the mediator is the person conducting the session and running the agenda. It is important to remember that the mediator does not provide legal advice, and you should always consider hiring an attorney to consult with as your go through the mediation process to ensure you understand your rights and responsibilities under Illinois law. It is also very important to have an attorney review your settlement agreement, especially if you have a longer terms marriage, disproportionate incomes, complicated financial issues, or children.
In short, no. Not every Illinois Collaborative Divorce case requires every professional. Depending on your circumstances, financial and mental health professionals and child specialists or other supporting professionals (mortgage specialists, special needs advocates, real estate brokers) can be added to provide additional support and structure to lead to a win-win solution for the whole family.
Anique has been a collaboratively-trained attorney since 2007; she became a fellow of CDI in 2011. With over 18 years of family law experience, including litigating cases in several Northern Illinois counties, Anique knows the best resolutions are ones that come from the participants with the help of a supportive, collaborative team of professionals. Divorce does not have to destroy the family and people involved; there is a better way. Anique can talk with you about how this process will work for you and your family: 630-560-6840.
