There has been a growing recognition over the past few decades that courtroom divorce, an adversarial process that pits husband against wife, is a dreadful and harmful method to resolve family disputes. As a result, the Florida Supreme Court, like many other judicial bodies, declared that family matters needed “a system that provided nonadversarial alternatives and flexibility of alternatives; a system that preserved rather than destroyed family relationships;…and a system that facilitated the process chosen by the parties.” In re Report of the Family Law Steering Committee, 794 So. 2d 518, 523 (Fla. 2001).
Two alternatives that have developed to fill this space are mediation and collaborative divorce. As collaborative divorce is a relatively new option, and there exists much confusion – even among experienced family law practitioners – about the differences between these two methods of dispute resolution, this article looks to compare and contrast mediation and collaborative divorce.
Event versus Process
Mediation is generally a one-time meeting where the parties come together, along with a mediator, to attempt to settle disputes. In Florida, the parties’ attorneys are also in the room, though other jurisdictions exclude attorneys. The mediator is a neutral actor who does not have the power to force the parties into any type of settlement, but can only encourage them to reach an agreement. A mediation conference will generally last from 3 to 8 hours or more. If the parties cannot reach an agreement in that meeting, then they tend to go to court, usually multiple times.