Litigate, Mediate or Collaborate: Choosing the Right Divorce Process for You

Mediating divorce

Deciding to get a divorce is a difficult decision.  But if it is a path that you are on, you need to know that there is more than one way to handle a divorce.  Once upon a time, divorce meant lawyers, courtrooms, and exorbitant expenses.  Fortunately, things have changed and there are alternatives available.  While it is still possible to litigate a divorce, you now also have the option to choose mediation or collaboration.  In this article, we will review the three different processes, including the advantages and limitations of each, so that you can determine which is the best for you and your situation.

Mediate It

One of the most popular options for divorce today is mediation.  Mediation is a structured negotiation led by a trained mediator.  The goal of the process is for the couple to discuss and come to an agreement on an equitable settlement, including the financial split and a parenting plan if applicable. 

Mediation has a number of advantages compared to traditional litigation, chief among which is lower costs.  Not paying lawyers by the hour to handle lengthy court proceedings can save tens of thousands of dollars.  Additionally, many people are happier with the outcomes of mediation because they are based on what the couple wants and needs, not on a judge’s opinion.  Finally, mediation stays private as there are no court records to be made public.  In fact, mediation has been such a game changer in the divorce industry that some states now require going through mediation before moving into the court system.

When considering mediation, there are a number of factors to think about.  The first is who you will hire to mediate.  A number of family law attorneys have been trained in mediation and offer that as a service in addition to more traditional litigation.  There are also non-attorney mediators who are generally well-versed in the laws governing divorce but are not   practicing lawyers.  It is wise to interview several different mediators to understand how they work and find someone who you feel comfortable communicating with.

Another major consideration in choosing mediation is how communicative and cooperative you and your soon to be ex are.  The mediation process requires that you are both willing to communicate your needs and wants and to negotiate a settlement that is reasonable for both of you.  Also keep in mind that you may be able to mediate a majority of the issues and use the court system only where absolutely necessary to settle any issues that you just can’t agree on.  

Let’s Collaborate

Another divorce option for those who wish to avoid court is collaborative divorce.  In a collaborative divorce, you hire a team of specially trained experts to help you work through your divorce settlement.  In this process, each spouse has their own attorney.  The couple also hires a neutral financial expert and a mental health professional to help them through their negotiation.  The collaborative professionals all work together through the process, helping the couple to reach a settlement that makes the most sense for them.

The benefits of a collaborative divorce are very similar to mediation in that the process generally costs less than litigation and the settlement remains private.   Additionally, by having a team of experts guiding the decisions and lawyers advocating for their own clients, each person can feel more confident that they understand all of the implications of their decisions.  The process helps to even the playing field between couples and helps everyone to make more informed decisions.

The main consideration in pursuing a collaborative divorce is the level of each parties’ commitment to the process.  Under the collaborative rules, if the couple cannot reach an agreement and wish to move forward with litigation, then they are required to find new representation and start over from the beginning.  As this would be both costly, and time-consuming, it is best to avoid starting a collaborative process if you don’t think both parties are genuinely interested in resolving the situation out of court.

If You Must, Litigate

And finally, there is always the option to litigate.  Litigation involves each party hiring their own attorney and then working through the court system to come to a settlement.  In addition to being the most costly option, it is also likely to be the most time-consuming.  Most courts are overburdened, and it can take months to be able to schedule even the most basic hearings. 

Additionally, this type of process is generally more adversarial in nature, with each attorney trying to get the best result for their client, regardless of the impact to the other party or any children.  And even worse, the parties have little control over the outcomes, as the judge will make the ultimate decision and may not be able to be creative in problem solving.

On the positive side, litigation ensures that each person as representation and advocacy for their needs.  It is also a more formalized process and the decisions made by the court are binding on both parties.  While it is likely to be the most drawn out and costly option, depending on the issues you are facing it may still be the best option for you.

Litigate, Mediate or Collaborate, You Decide

Ultimately the decision on how to move forward with your divorce will be made by you and your soon-to-be ex.  What worked for a friend or family member may not be the right option for you.  Only you know how well you and your spouse communicate, how willing each of you are to negotiate and what financial resources you are willing to spend on a divorce.

As you start down this path, be open to options.  Interview multiple specialists with different practice models.  Figure out what you are most comfortable with from a process perspective and who you are most comfortable with from a personality/style perspective.  And don’t forget the interests of your children.  If you can avoid a contentious and drawn-out battle, it will ultimately be better for both you and your children.

Divorce is never fun.  But you can make decisions that make the process better for you and your family.  Whether you decide to pursue litigation, collaboration or mediation, make sure you are comfortable with the process and the professionals that you have chosen to help you.  The more you understand your options before you start the process, the better you will be able to choose the right model for you.

Sara Zuckerman, CFP®, CDFA® is the founder of Reset Financial Planning located Scottsdale, AZ and serving women across the country with a focus on helping women who find themselves suddenly single in mid-life, align their financial resources with their values to plan for the next chapter of their lives.


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Disclaimer: This article is provided for educational, general information, and illustration purposes only. Nothing contained in the material constitutes tax advice, a recommendation for purchase or sale of any security, or investment advisory services. We encourage you to consult a financial planner, accountant, and/or legal counsel for advice specific to your situation. Reproduction of this material is prohibited without written permission from Reset Financial Planning, LLC, and all rights are reserved.