Mediation vs. collaborative divorce in New York: what is the difference?

How divorce mediation works

In mediation, you and your spouse meet with one neutral person, the mediator. The New York courts describe the mediator's job as helping the parties communicate so they can settle the dispute themselves. The mediator does not decide anything.

Sessions usually cover the issues a divorce must settle: property and debt, spousal maintenance, child support and a parenting plan. When you agree, the terms are written into a settlement agreement. In New York, a property agreement must be in writing, signed by both spouses and acknowledged the way a deed is. Acknowledged means signed in front of a notary or similar official.

Many people have a lawyer review the agreement before signing. Some mediation practices include attorney help for the legal paperwork.

How collaborative divorce works in New York

In collaborative divorce, each spouse hires their own lawyer trained in the collaborative process. The New York courts describe collaborative law as resting on three commitments.

• No court. A pledge not to litigate disputes in court.
• Open sharing. An honest, voluntary and prompt exchange of information, without formal discovery. Discovery is the court process for demanding documents and testimony.
• Shared goals. A commitment to look for solutions that reflect both spouses' top priorities and their children's needs.

Everyone signs a participation agreement. It usually says that if either spouse goes to court, both collaborative lawyers must withdraw. Each spouse would then hire a new lawyer. This rule gives everyone a strong reason to keep working toward a deal.

Teams sometimes bring in other professionals, such as a financial specialist or a child specialist. The New York court system also has a Collaborative Family Law Center page and lists collaborative law as a common method for divorce.

The main differences

• Who is in the room. Mediation has one neutral professional. Collaborative divorce has two lawyers, one advocating for each spouse.
• Advice. A mediator cannot advise either spouse. A collaborative lawyer gives legal advice to their own client.
• Cost. Collaborative divorce involves paying two lawyers through the whole process. If it fails, you also pay new lawyers to start over.
• Exit. If mediation stops, you can keep the same attorneys you consulted. If collaboration stops, the collaborative lawyers step aside.

Who each approach tends to suit

Mediation often fits couples who can talk respectfully and want to make decisions together. It works best when both spouses can share financial information openly. A neutral guide is often enough for them.

Collaborative divorce may fit couples who want to stay out of court but want a lawyer beside them in every meeting. It can help when one spouse feels less confident about money or negotiation.

Mediation may not be a good fit when there is domestic violence or a serious imbalance of power. The New York courts say mediation may be inappropriate when one party has a significant advantage in power or control.

What a court still has to do

Both paths end in an agreement, not a divorce. The papers still go to the Supreme Court, and the divorce is final only once a judge signs the Judgment of Divorce and it is entered. If you have children, child support and custody must be decided before the judge will sign. The judge reviews those terms; agreeing on them does not guarantee approval.