Differences Between Collaborative Divorce and Divorce Mediation

Both collaborative divorce and divorce mediation are alternative processes to traditional litigated divorce. To determine if either of these alternatives is right for you, first consider their similarities and differences.

The two processes share a number of commonalities.

• Both involve negotiating terms of a divorce outside of the courtroom;
• Both give the divorcing couple more control over the final terms of their divorce, rather than having the court make decisions;
• Both are non-adversarial approaches to divorce;
• Both can save time and money over traditional litigated divorce proceedings;
• Both are voluntary, meaning the couples can withdraw from the proceedings at any time, and
• The information disclosed by either party during both proceedings is done so on a voluntary basis.

One major difference between the two processes is the role of the parties involved.

In divorce mediation, the divorcing couple, either separately or together, hires a neutral third party – a mediator – to help facilitate the proceedings. While the mediator does not have to be an attorney, he or she should be well-versed in divorce and family law matters.

The role of the mediator is to aid the couple in negotiating the terms of their divorce. The mediator must remain neutral throughout the proceedings and cannot represent either party. Instead, the mediator’s role is to keep both spouses focused and on track to resolve issues, arriving at difficult agreements. To do this, the mediator can point out information that may help both sides reach agreement.

Either spouse can withdraw from the mediation at any time. The mediator, however, can only leave the mediation for good cause.

In a collaborative divorce, each spouse retains his or her own collaborative divorce attorney. All four parties must sign a statement acknowledging that if negotiations fail, the attorneys are to remove themselves from the proceedings and the couple must start over from the beginning. The attorneys are then prevented from representing either party in any future capacity relating to their divorce.

While the collaborative attorneys are retained to represent their individual client’s best interest, all four parties agree to work together toward reaching an agreement that ultimately takes into account the best interests of each spouse and their children, if any. Additional collaboratively-trained experts in the financial and mental health field may be called in to offer assistance with these negotiations.

No one process is right for every divorce. In some relationships, an imbalance of power between the couple or a history of abuse can impede successful negotiations. Each couple must evaluate their own circumstances, including their ability or inability to work together, when selecting the best process for their divorce.

In both collaborative divorce and divorce mediation, both spouses need to be open to compromise and willing to be forthright in their negotiations. Both of these alternative processes can save time and reduce expenses associated with divorce; however, cooperation can also go a long way to minimizing the costs of a traditional litigated divorce.

The attorneys at Kearns Rotolo Law are experienced and trained in the areas of divorce mediation and collaborative divorce proceedings and are prepared to assist you in the process. 

Victor A. Rotolo has been included on the List of New Jersey Super Lawyers in the years 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021, 2022, 2023, and 2024 marking his nineteenth year of inclusion on this list. The list of New Jersey Super Lawyers is generated by the Thomson Reuters organization which employs the following methodology and set of standards to compile the list each year. Super Lawyers Selection Methodology [No aspect of this advertisement has been approved by the Supreme Court.]

Victor A. Rotolo is certified by the Supreme Court of New Jersey as a Civil Trial Attorney.

"A certified attorney is more than just an attorney who specializes in a particular area of law. A New Jersey attorney who is certified by the Supreme Court as a civil trial attorney must have:

• been a member in good standing of the New Jersey bar for over 5 years
• demonstrated a substantial level of experience in civil trial law
• been favorably evaluated by other attorneys and judges familiar with his or her work
• taken and passed a written examination in civil trial law."

Source: Supreme Court of New Jersey, Board on Attorney Certification, Brochure on Certified Civil Trial Attorney. See Rule 1:39: Specialty Certification of Attorneys.

Please contact the experienced attorneys at Kearns Rotolo Law if you have a collaborative divorce or divorce mediation matter you would like to discuss.