Most California readers have a basic understanding of litigation, at least insofar as what the term itself means and the fact that it refers to a court process. With regard to divorce mediation and collaborative law, however, confusion often sets in because, although both are processes for settling divorce out of court, they are also different from each other in several ways. To determine a best course of action in a particular set of circumstances, a concerned spouse will want to learn as much as possible about each option in order to make a well-informed decision.
When spouses choose to mediate a divorce, it is usually because they wish to avoid confrontation and want to settle their differences in as economically feasible a fashion as possible. Each spouse hires an attorney to help protect his or her interests during mediated sessions. In a collaborative process, an arbitrator or panel of arbitrators oversees the sessions, acting in place of a judge, with discretion to make decisions after evidence and testimonies are presented.
Mediation involves having a facilitator present who helps keep sessions on track so that spouses can achieve a swift and fair agreement. A mediator is not judging anything, however. In both types of negotiation, spouses may opt to switch to litigation if they are unable to accomplish their goals outside a courtroom.
In some states, divorce mediation and litigation are used in conjunction, meaning spouses must first try to resolve custody, property and other issues through mediation before the court agrees to schedule a lawsuit on its docket. Divorce mediation is unlikely to work in situations where extenuating issues are impeding the solution process, such as if one parent accuses the other of being unfit. Any California spouse preparing for divorce can benefit from scheduling a consultation with an attorney who is well-versed in all three matters of law.