Collaborative Divorce, Mediation, and Traditional Litigation

Key Takeaways:

Most family law cases are settled outside of court: Over 90% are resolved through methods like Collaborative Divorce or mediation, offering a less adversarial approach than traditional litigation.
Collaborative Divorce and mediation focus on mutual solutions: These processes provide professional support and are often more efficient, cost-effective, and customizable to family needs.
Litigation is time-consuming and costly: Court battles can increase conflict and take years, though many cases still settle through mediation before reaching trial.

Did you know that more than 90% of family law disputes are settled outside of court? When we think about family law matters, we often presume a traditional litigation model in which two attorneys argue the merits of their client’s case in a courtroom where the judge determines the outcome. Even though that is not the experience of most people, it is hard to find information about all the different conflict resolution processes from which families can choose according to their needs. Let’s look at some of the most common options.

Collaborative Divorce

Collaborative Divorce is unique in that the spouses and their attorneys specifically agree not to utilize the court system to address the dispute and to fully disclose all relevant information in the Collaborative Process. These important initial agreements form a cornerstone for a client-centered process of decision-making, helping preserve family relationships and resources by working to achieve a mutually acceptable, durable agreement and not fanning the flames of conflict. The agreement not to go to court frees the matter from the scheduling constraints of the court and allows the spouses to determine the pacing of the process.

The Collaborative Divorce is a confidential process that acknowledges there are legal, financial, and emotional elements to every divorce. Rather than arming for battle, the process helps people take a problem-solving approach to settling their divorce, even in high-conflict cases. The focus is on giving both spouses the information and tools they need to make good decisions for themselves and their family. Each spouse works with a collaboratively trained attorney, mental health professional (called a divorce coach) and neutral financial professional to help find a mutually acceptable, durable agreement in an otherwise disagreeable situation. There is a shift away from placing blame and toward future outcomes.

People sometimes worry that more professionals at the table means the process is more costly. While there are no guarantees about cost in any process, having the right experts to support the spouses with education and advice results in a more efficient, cost-effective, and timely process when compared to traditional litigation. The process is highly customizable to provide appropriate resources as needed.

Collaborative Divorce does require spouses to have the ability to consider the perspective of the other person in order to achieve the mutually acceptable, durable agreement. The International Academy of Collaborative Professionals’ research indicates more than 90% of cases that enter the collaborative process successfully resolve within the process. And those choosing the process report a higher degree of satisfaction with their outcome than those who chose other dispute resolution processes. Tennessee and Kentucky are among the states in the U.S. that have a statute or rule governing collaborative practice, as do all the Canadian provinces and countries across the globe.

Mediation

Mediation is a voluntary, confidential process in which a neutral facilitator, a mediator, helps the parties communicate and explore settlement ideas. In some cases, the parties work directly with the mediator to gather relevant information and jointly problem-solve to settle the matter with their attorneys, if they have them, taking a limited scope role. In others, the parties participate in mediation together with their attorney advocates. The parties are the ultimate decision-makers and determine the outcome of their conflict through compromise facilitated by the mediator. No one is forced to accept an outcome to which they do not agree. Generally, mediation is a less costly option than litigation that goes to trial. And in many states, such as Tennessee, mediation is required in most divorce cases.

While many mediators are attorneys, mental health professionals and CPAs also serve as mediators in family law matters. Every divorce has legal, emotional, and financial components, and many include minor children. Engaging mediators or co-mediators who have expertise to help the parties address the nuances specific to the settlement ideas can lead to better outcomes for the family system, similar to the Collaborative Divorce process.

Mediation can be customized, much like Collaborative Divorce, to meet the needs of the parties in terms of the style, format, and duration of the discussions. Some mediators complete special training to address cases with domestic violence, which need careful consideration and safety planning. Mediation is practiced all over the world. In the U.S., many states, such as Tennessee, have statues or rules that govern mediation and establish standards of conduct for mediators.

Traditional Process

Every family law dispute is unique in some way. Thus, a “traditional” process can vary based on the parties and the specifics of the conflict. A traditional process that ends with a decision by a judge is only one option. It is typically the most expensive resolution process and takes the most time to achieve with each side hiring their own experts. Divorce cases can take one to three years to get a trial date, and even then, a judge may not issue a decision for another 90 days. It can be emotionally draining, consume family resources, and create greater animosity between the parties, which can damage co-parenting. Additionally, the end result is decided by a third-party who does not know the family system and makes a decision driven more by law than the needs and priorities of the family. This can lead to unsatisfying outcomes.

However, as noted above, many family law disputes choose some form of mediation or settlement negotiations before heading to the courtroom. Sometimes parties and their attorneys will do so after or when doing informal information gathering, and sometimes they choose to first do formal information gathering called discovery. If parties do not reach agreement in mediation, that does not mean they cannot try again. They may choose to go further down the litigation path, perhaps take depositions, sworn testimony, and then return to mediation with the same or different mediator to try to achieve settlement – or even try direct settlement negotiations.

It is also important to note that parties can agree on many of their decisions and ask the judge to accept those agreements and rule only on the issues for which the parties disagree.

Reach out to an expert

How do you decide which family dispute resolution process is right for you and your situation? Family law attorneys are well-versed in the options and can discuss them with you in a consultation.

Sometimes people prefer information from a neutral professional. While also a financial expert serving in litigated matters, LBMC Shareholder Cheryl Panther frequently meets with people, sometimes both spouses together, to discuss their situation and share the ways in which each process option might address their concerns. Ms. Panther has served as a financial neutral in Collaborative Divorce and as a mediator in family law matters for more than 15 years helping hundreds of clients. Learn more.

LBMC, PC, is not a law firm and no portion of this website and associated blog content should be construed as legal advice. To the extent a reader has any questions regarding the applicability of any specific issue discussed herein to their individual situation, they are encouraged to consult with the professional adviser of their choosing.

Information included in this website and associated blog is for educational purposes only and is not intended as an offer or solicitation for the sale or purchase of specific securities, investments, or investment strategies. Investments involve risk and, unless otherwise stated, are not guaranteed. Please consult with a qualified financial adviser and/or tax professional before implementing any strategy discussed herein. Past performance may not be indicative of future results.

Collaborative Divorce

Mediation

Traditional Process

Reach out to an expert

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