Collaborative Divorce vs. Mediation for Settlement in Divorce

Today, increasingly more parties are striving to end their marriages amicably rather than with hostility - seeking alternatives to that horrifying outcome in “The War of the Roses” (the 1989 film depicting a couple embroiled in an outrageous and bitter divorce battle).  Rather than going to court to have orders issued by a Judge, parties can take control of their divorce destiny by exercising their right to craft an amicable divorce.  

Effective January 1, 2026, California introduced a new alternative: the Joint Petition for Dissolution, to encourage settlements outside the traditional adversarial process.  Instead of one party being served with a Summons declaring “You Have Been Sued”, the parties prepare and file a Joint Petition for Dissolution together, to lay the foundation for resolution without litigation.  

Whichever path parties take to reach a settlement, if they genuinely desire to dissolve their marriage amicably outside of the courtroom, full and careful disclosure is mandatory.  Given that the leading cause of divorce stems from financial incompatibility, such as disagreements regarding spending habits or lifestyle, and/or the one party’s lack of access to financial information, both parties must demonstrate commitment to the process with a transparent exchange of information.

Which way to go?

Whether using the process of Collaborative Divorce or Mediation, the goal is the same – to reach a negotiated settlement without going to court. In both scenarios, the parties seek to resolve financial, property and custody issues best suited to their circumstances, which can include options that might not be available to a Judge who is constrained by the mandates of the Family Code.  

Collaborative divorce utilizes a team of professionals to guide the parties on each distinct aspect of their divorce. The parties sign an agreement pledging to negotiate in good faith, act respectfully, and disclose all relevant information.  Each party defines their priorities and has their own attorney to advocate for them. With the assistance of their attorneys, they assemble a team comprised of a financial professional who not only helps the parties identify and divide their assets, but also guides them towards a plan for their post-divorce future; a mental health professional who will coach them in effective communication techniques to facilitate collaboration; and, if there are children, a child specialist who is experienced in the unique aspects of co-parenting in two different homes and who is focused on the best interests of the children. Over the course of several meetings the goal is to negotiate a final agreement that is confidential and collaborative.  

Mediation is conducted by a neutral (such as a retired Judge or an attorney who is experienced in alternative dispute resolution) who guides the parties through the various legal options available, but without advocating for either party.  

Whether via mediation or collaboration, the parties agree that all communication during the process will be confidential, such that if negotiations fail, neither party can use the settlement communications against the other in future court proceedings. If collaborative process fails, then both attorneys are legally obligated to withdraw from the case, and the parties must hire new attorneys for the ensuing litigation, thus motivating the parties and the attorneys to persist with the collaborative process until resolution is achieved.  

What roles lawyers play

A divorce lawyer plays a crucial role in both collaborative divorce and mediation.  

In a Collaborative Dissolution the attorneys fully participate throughout the process in protecting and advocating for the legal rights of their client.  

In Mediation, the parties meet with the impartial mediator with or without their attorneys present. The parties can retain a consulting attorney or attorney of record to independently advise and assist them in assessing and finalizing the terms they reach in mediation.  

How to choose the best fit based on conflict level, finances, and goals

Conflict Level

Both Collaborative Divorce and Mediation are non-adversarial approaches. Notwithstanding the demise of a marriage, for either of these alternatives to succeed the parties must both be committed to finding an amicable resolution. That means disclosures of all property and financial information must be transparent; there must be a level of respect by both parties; and there cannot be any intimidation or abusive behavior by either party.  

Finances

For both alternatives, each party may retain their own attorney. Almost all family law attorneys charge by the hour whether they are collaborative divorce attorneys or consulting attorneys for mediation.  However, an attorney retained for consultation services for mediation may charge a lower retainer than a collaborative divorce attorney who is fully representing the party.  

In addition to lawyer fees, mediation will require the cost of the mediator, who may charge by the hour or a flat fee up-front. Retired judges can be an excellent choice but are typically more expensive than lawyers who are acting as mediators.  

Collaborative divorce will include the costs of the team of experts, but they will be shared – unlike litigation in which each party may hire their own experts.

All in all, whether mediating or engaging in a collaborative divorce process, the total cost is likely less than the cost of protracted litigation. But just as important as financial savings is the emotional benefit from the reduced conflict, especially when children are involved.  

Goals

Both approaches will require the parties to identify their shared goals. Presumably both will agree that they’d prefer to pay less attorney fees, avoid litigation and the stress of going to court, and reduce the emotional conflict for themselves and their children.  Importantly, approaching divorce with a non-adversarial method allows both parties to intentionally set the pace to address their issues methodically rather than having to engage in a legal system fraught with urgent deadlines, delays, and a loss of control over the process.

Contact Cage & Miles today to schedule a confidential consultation. We have highly trained and experienced mediators, attorneys who are experienced and trained to work with clients in a collaborative divorce process, as well as family law attorneys who can support you through mediation or represent you in collaborative process.   With offices in San Diego, Los Angeles and Riverside and mediators who mediate across California, we provide clear guidance tailored to your specific situation.

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