A term that is becoming more recognized is “collaborative divorce.” I know that I’m being asked about it more and more lately. Usually the follow-up question is does collaborative divorce involve mediation.

Collaborative divorce is an alternative to traditional formal divorce litigation and an option for couples who are both ready to end their marriage and willing to work together to negotiate issues.

Before choosing collaborative divorce when meeting with a mediator, the parties must understand that the mediator does not provide legal advice, so each party should still communicate with their attorney. Nor can the mediator provide financial advice, so each may also want to seek out their own adviser or accountant for any money related issues. And, if children are involved, each party may seek out assistance from a child specialist or a co-parenting coordinator.

Then, with the help of a mediator, a couple can work together and try to resolve issues and their future relationship.

The advantages to the couple are privacy, confidentiality, as well as time and cost savings. More importantly for couples who have no desire to engage in “warfare,” collaborative divorce allows them to negotiate their separation and divorce in an environment that is mutually respectful of the relationship they once valued and to negotiate how they will relate to one another in the future.

One mediation I conducted provides a typical example of a collaborative divorce for a couple with no children. Each party had consulted with attorneys and agreed to meet to mediate issues before returning to their attorneys who would prepare the necessary legal documents. In a three-hour mediation, they began by expressing to each other the disappointment and hurt that their relationship was ending. Then continued by agreeing they had no desire to work to continue their marriage. At that point they divided assets and liabilities and necessary details to put that division into place. Then, after successfully dealing with those issues, they were both ready and willing to express to one another respect and goodwill toward one another.

They entered the mediation as adversaries; they left the mediation as people who collaborated to achieve the best outcome for each.

Many people want to know what percentage of mediations are successful. That is a surprisingly difficult question to answer, not because of a lack of data on mediation, but because of what “successful” means.

One way to define that would be to report what percentage of mediations result in a signed agreement. And, in fact, some mediators do in fact report that they have a high percentage of such agreements. Most mediation educators such as myself do not consider reaching signed agreements as a true indicator of success. One reason is that if mediators focus so much on reaching an agreement, they may in fact be putting inappropriate pressure on disputants to settle, when they may not yet be ready to do so.

But given that reservation I will report that it is commonly reported that a majority of Small Claims Court mediations do in fact end with an agreement.

A second way to define success would be if the disputants were satisfied with the outcome. Of course, this is very difficult to assess. One indirect way is to compare Small Claims Court mediated agreements with court judgments in terms of compliance. It is generally agreed that the mediated agreements are more likely performance indicators of a higher level of satisfaction.

And a third way to define success would be to consider what happened after the mediation.  For example, I have been the mediator for disputants who were not able to reach an agreement and decided to end the process as a result. But a week or month later, the disputants settled. They report that what they learned during the sessions made it possible for them to settle. They just weren’t ready to do so while the mediation was under going. So, was that mediation successful even though it did not end in an agreement? I would suggest that it was.

And a fourth way to define success would be the disputant’s satisfaction with the process regardless of the outcome. There have been studies that show disputants were satisfied even when no agreement was reached. For example, some reported benefitting from being able to express their cases to the other parties and/or from gaining a better understanding of the other party’s position. 

Perhaps the underlying issue is how Western culture tends to think of conflicts in terms of a final agreement. Other cultures recognize that many conflicts are part of an ongoing relationship. A conflict may be totally resolved forever. In fact, a conflict may only be an episode in an ongoing relationship. Perhaps, then, the criteria for evaluating the effectiveness of mediation is if it provided an opportunity for the parties to engage in meaningful exchanges of perspectives.

Judging success should be based on the ethical issue of self-determination. Did the parties have the opportunity to decide what they want to do with the conflict and their relationship? One of the most effective mediators I know when she is in mediation where the parties seem to be in deadlock, leans back and says “I’m so sorry I just don’t know what to do here. What do you suggest we do?” She then sits quietly. Most times she tells me the parties start working together and reach some sort of agreement.

Success should be determined by the disputants, not by the mediator.