Mediation vs collaborative law

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Although both mediation and collaboration are alternative methods of resolving issues between divorcing and separating couples, they differ considerably each from the other.

All mediators are trained but some are lawyers and others are not. Collaboratively trained lawyers are lawyers first and foremost but have been trained to make the paradigm shift away from the litigious process.

What is mediation?

Mediation involves a single, impartial and independent arbiter encouraging the clients to compromise their issues in a series of meetings.

What is collaborative law?

The collaborative process involves the parties and their own collaboratively trained solicitors, again in a series of meetings, to which other trained professionals can be invited – whether professional counsellors, accountants or independent financial advisers.

Like mediation, collaborative law utilises skilled dispute-resolution professionals who are committed to helping parties reach personally-tailored solutions to divorce-related disputes.

What is the difference between collaborative law and mediation?

Both processes offer more control to the parties, enabling customised results in an altogether more civilised ways than in the divorce courts.

Unlike mediators, however, collaborative lawyers function as active legal advisors and negotiators alongside their clients at the centre of the dispute resolution process, rather than on the sidelines.

This is the single element of difference.

Which option is right for you?

In mediation, clients cannot be advised by the mediator, which may cause difficulties. Often there is an imbalance of power in the clients’ relationship: one party may want to buy peace at any price, whilst the other dictates the outcome they wish to achieve.

In collaborative law, on the other hand, these structural weaknesses disappear because advice, representation and advocacy are at the core of the process. Two skilled legal advocates can go much further than a neutral mediator in seeing that the playing field is levelled.

At the same time, two skilled legal minds are thoroughly engaged to help both parties arrive at creative, ‘win-win’ solutions whenever and wherever possible.

In the collaborative arena, both parties are represented by experienced family lawyers, neither of whom are expected to be neutral. In the four-way settlement meetings, the parties and their counsel together ask questions, share information, brainstorm, evaluate alternatives and offer proposals.

Mediation sessions also utilise settlement meetings – each and every session is designed, both in the mediation and collaborative law models, to give space and time to the parties to resolve whatever issues the parties have – to reach a compromise that both parties can live with – not necessarily be happy with.

Often, however, in mediation meetings one of the parties is more determined than the other, leaving the compromise achieved not necessarily fair to both. A mediator is not able to say that to the parties but, working collaboratively, the lawyers are not only able to say so but most certainly will say so.

Arguably, the biggest potential downside of adopting a collaborative approach is that if it fails, both parties have to part company with their respective lawyers and start again. However, this often acts as an additional incentive to reach an agreement.

For more information on the options available, please contact our Family team who would be happy to advise you.

 
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