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Mediated vs. collaborative divorce: What’s the difference?

If your Ohio marriage appears on the verge of breaking up, you likely dread the prospect of a lengthy, expensive and acrimonious litigated divorce. However, you and your spouse have two additional options: a mediated divorce and a collaborative divorce. Both are out-of-court processes whereby you and your spouse negotiate together to resolve your own differences rather than leaving it up to a judge to determine how you will live your respective post-divorce lives.

While similar in nature, Greenbush Financial points out that mediation and collaboration are two separate processes with a few distinct differences.

The major difference

If you choose mediation, you and your spouse will hire a neutral mediator to guide you through your negotiation process and ensure that neither of you disrespects or overwhelms the other. This mediator, however, does not legally represent either of you and usually is not an attorney himself or herself. While both you and your spouse have the right to retain your own attorney and have him or her present in your mediation meetings, most couples do not do this. Instead, the vast majority of mediated divorces have no attorney involvement at all, except to the extent that often an attorney reduces your agreements to writing and presents them to the court.

Conversely, if you choose a collaborative divorce, the first step is that you and your spouse each hires your own private attorney. Consequently, each of you has an attorney looking out for your legal rights during the collaborative process, which is essentially the same as in mediation. You, your spouse and your respective attorneys hold joint meetings during which you and your spouse negotiate together to resolve whatever issues you face. The attorneys do not view each other as adversaries, nor do they allow you and your spouse to view each other that way. As in mediation, neither of you can intimidate or overwhelm the other.

Secondary difference

The second difference between mediation and collaboration may or may not be important in your particular situation. In mediation, any information and/or documents that either you or your spouse presents are strictly voluntary. The mediator cannot force either of you to produce anything. In a collaborative divorce, however, both attorneys can engage in the traditional discovery process if and when the need arises. Discovery is the process by which an attorney formally requests opposing counsel to produce his or her client’s information and documents that the requesting attorney has the legal right to receive. If the attorney fails to produce the requested items, the court can sanction him or her.

While this is educational information and not legal advice, it can help you understand the differences between mediation and collaboration.

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