Collaborative law and mediation are both alternative methods of resolving issues resulting from divorce and separation, and are often used by people interested in exploring alternatives to court. However, they are very different in practice. Here, we explain what they are and how they differ.
What are mediation and collaborative law?
Mediation involves using a trained impartial and independent advisor who encourages individuals to compromise and reach an agreement through a series of meetings. Some mediators may also be lawyers, but this is not always the case.
Collaborative law involves the divorcing parties and their collaboratively trained lawyers getting together for a series of meetings to reach a settlement. Other professionals may be invited to these meetings, including but not limited to counsellors, independent financial advisers, or accountants. Collaborative lawyers are legal professionals first, but have shifted away from litigation and put representation and advocacy at the centre of the process.
What is the difference between collaborative law and mediation?
Although both options offer more control over the outcome for the parties by customising settlements, there are some notable differences. These are:
- Collaborative lawyers can advise their clients alongside negotiating with the other side. However, a mediator cannot offer legal advice, which may cause difficulties. This may lead to an imbalance of power in the parties’ relationship. For example, one party may want to settle at any price, whilst another may dictate the outcome they are determined to achieve.
- In collaborative law, two skilled legal advocates can arguably achieve more, and go further, than a neutral mediator can to ensure a level playing field is maintained.
- Two skilled legal professionals are thoroughly engaged in working collaboratively in order to assist parties to compromise and reach creative ‘win-win’ solutions.
- In collaborative law, because both parties are represented by their own experienced family solicitors, neither is expected to be neutral. During the meetings, the parties and their legal representatives ask questions, share information, evaluate alternatives, brainstorm, and offer proposals.
- Each and every mediation session is structured to give space and time to the parties to resolve outstanding issues and reach a compromise they can both accept.
- In mediation, it can be the case that one party is more determined than the other. This means that a compromise may not necessarily be fair to both. A mediator is unable to say this to the parties. However, in the collaborative arena, the lawyers are able to point this out, and will certainly do so.
- The main issue with the collaborative law approach is that if it fails, both parties will be required to leave their respective solicitors and start from scratch with new ones. Although this can sometimes have the opposite effect and concentrate minds to agreeing a settlement.
Which process is right for me?
There are many things to factor in when choosing which route to go down. A mediator is neutral and will not side with either party, and, if you cannot agree, you don’t run the risk of losing your solicitor as you would with the collaborative process. Whilst a mediator will record your agreement, any settlement reached is only binding once each of you has the opportunity to take separate legal advice. After which, the agreement will be turned into a consent order that is placed before the court.
In collaborative law, you each have your own lawyer throughout, advising and speaking on your behalf. If either party lacks negotiation skills or financial understanding, or feels vulnerable when in the presence of the other, collaborative law may be better than mediation.
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