It is important to realize that there is generally only one legal system in each state; so, to say that there is more than one process is a bit of an exaggeration. What that people are referring to when they talk about the difference between regular divorce and mediation or collaborative divorce, is that divorce mediation or collaboration is intended to turn a contested divorce into an uncontested one by getting spouses to agree.
Saying a divorce is contested simply means that the husband and wife do not agree on one or more issues, such as a disagreement as to how marital assets should be divided or what custody and visitation should be. However, if the husband and wife can agree on all issues, then their divorce is uncontested.
Mediation involves the husband and wife meeting with a neutral third party, who may or may not be an attorney, who tries to help the couple find common ground and reach an agreement on the issues that must be decided in their divorce. Remember it is impossible for the mediator to provide you with unbiased legal advice because the mediator is trying to force an agreement. This can be particularly problematic when the mediator is an attorney, providing what may appear to be legal advice and spinning things in one direction or another to get an agreement. Remember, if you do reach an agreement the mediator can say the process was successful, however, that agreement may be one sided.
Obviously the most common problem with mediation or collaboration is that the husband and wife may spend considerable time and money to go through the mediation process and still not reach an agreement. Another frequent problem occurs when the spouses do reach an agreement through mediation and then one or both of them later consults with an attorney, realizes the deal is unfair, and then backs out. At that point the whole agreement usually goes out the window. Once one party backs out of one aspect of the agreement it can often have a cascading effect resulting in a disagreement on many more issues. This can actually make the divorce process more heated as the other party may resent their spouses decision to back out of the deal.
Another problem with mediation is that often the relationship dynamic between the spouses can create an uneven playing field. Remember, the mediator is simply trying to get the spouses to reach an agreement and is not really there to represent or advise either party.
An additional issue may be that, if the spouses have not yet consulted with an attorney, they may be unaware as to what their legal rights and responsibilities are and what the states laws would normally favor. This is usually the reason why, when a spouse consults an attorney after mediation, they may back out of the mediator’s arrangement. Their attorney may advise them that the agreement the mediator worked out is not in their favor.
In most states each party will be advised to consult an attorney prior to finalizing any agreement, so it is unlikely that the parties will go through the whole process without eventually meeting with an attorney. In addition, for the divorce to be finalized, the spouses must appear before a court of law in their state and, if the agreement is too one sided, the judge may raise issues with it. It is important to note, however, that you cannot always rely on a judge to point out that your agreement is unfair. Many courts are processing so many divorces that, if an attorney does not represent you, it is possible your case may not get the attention from the court that it deserves.
If you are considering the difference between regular divorce and mediation or collaborative divorce, you should realize there is no substitute for having an attorney advise you of what your rights and responsibilities are under the law. If you do enter into an agreement and then later realize that you made a bad deal, you might be stuck with it.