The difference between mediation and collaborative practice becomes important when someone tries to decide which process might work better for him or her in a divorce.
The intent of both collaboration and mediation is the same and the differences between collaborative family law and mediation can be subtle.
Many collaborative divorce lawyers and their allied professionals are also trained in mediation and also provide mediation services. The mediator cannot give either of the spouses legal advice or be an advocate for either side. Lawyers for each spouse are absent during the mediation sessions, but the spouses can consult legal counsel between sessions. Generally the mediator does not draft the documents necessary for a divorce. By comparison, in a collaborative divorce both spouses have lawyers present during the negotiations to keep discussions moving forward. The lawyers, whose training is similar to mediators, work with their clients and each another to assure a balanced positive and productive settlement. When there is consensus, the lawyers write a settlement agreement that is reviewed and edited by both parties until both are satisfied.
Mediation is voluntary. The parties make decisions together based on their understanding of their own views, each other’s views, and the situation at hand. If lawyers are present in the mediation, they may be advocating for their clients’ positions within the context of the mediation, but may also be planning for the possibility of litigation. For some clients, mediation provides a sense of comfort and continuity to know that they have continued representation by someone prepared to protect them until a final resolution, whether in mediation or litigation. Typically, however, a matrimonial mediation does not have lawyers present in the room. This works well for people who know their own mind and situation and, with the help of the mediator, are comfortable speaking for themselves. They may not need the presence or support of additional professionals to reach an agreement. They often choose mediation in order to have a more direct influence and control over the process and the outcome.
The mediator’s role, with or without lawyers present, is to manage the process. The mediator makes sure both parties are heard and understood and that parties know enough about their situation and appropriate law for informed decisions to be made by both parties. The mediator facilitates a conversation between the spouses and also makes sure that exchange comes from a place of understanding and reasonable “equality of influence.” For some clients, feeling heard by a neutral third party is a key step in reaching an agreement.
By comparison, in collaborative practice, which is also voluntary, the lawyers are present as allies for the parties and will not be involved in litigation.
In collaborative discussions, lawyers are not aligned with their clients’ positions. Collaborative family law is a process in which a team of professionals, including attorneys, therapists and consultants, work together to help a couple end their marriage as peacefully as possible.
The attorneys seek to understand not only the view of their own client but also the perspective of the other party or parties. Often, mental health and financial professionals are on hand to work together with the lawyers to form a collaborative team that attends to the emotional, financial and legal aspects of the parties’ situation. The collaborative team manages the process for the benefit of all parties.
The parties feel freer to talk about what is happening on many levels because the singular focus of all of the professionals and the parties on settlement often changes the quality and content of the discussions, which can lead to a more satisfying resolution.
People who feel they need more support in the process often choose collaborative practice, particularly when there may be an imbalance of power or dynamics or challenges in communication; or there may be an imbalance in information, or a perceived or actual lack of sophistication with financial concepts, that can be addressed with the help of financial professionals. The collaborative team can help the parties determine what resources and professionals will be most useful for them.
Collaborative family law cases are substantially less expensive than cases taken to court. At the same time, collaborative divorce is almost always more satisfactory and productive for the participants. Costs vary depending upon the difficulty of the case, but one thing is certain: no funds will be spent on waging war. In collaborative family law, parties are assured of getting the assistance they need to succeed, while avoiding costs associated with destructive fighting. The dollars spent on the collaborative process are a wise investment in a better future for the parties and for their children. Costs vary depending upon the court and the jurisdiction, but mediated divorces may cost up to $6,000 or more per spouse; collaborative, up to $10,000 or more per spouse. This compares with up to $30,000 or more per spouse to wage war in court.
No one process is the right answer for everyone. The right process is the one that meets the needs for each individual situation.