What is the difference between mediation and collaborative law?
As a collaborative lawyer, I often encounter the question: “What is the difference between mediation and collaborative law (“CL”)?”
It’s hard for non-lawyers to see the differences; in fact lawyers sometimes struggle to articulate them.
After all, both are non-adversarial processes. Both are forms of interest-based negotiation. Both are voluntary and cannot be concluded unless the parties agree to a resolution.
One difference is that CL has an efficient discovery process built into its structure. Mediation does not usually require an information exchange step as part of its process. This limitation can allow mediation to being used toward the end of the litigation process and viewed as a part of it.
Another difference is when they are used. Typically, parties don’t turn to the use of mediation until litigation is well under way. This could be after thousands have already been spent on legal fees and relationships between the parties have been seriously strained if not destroyed. Alternatively, CL happens at the outset of the dispute resolution efforts, before any litigation has been commenced. So the chances of preserving relationships, saving money, and avoiding the draining of resources and emotions are far greater.
Third, CL is the collective work and energy of an integrated team effort in which all parties and all lawyers are working in collaboration with each other, building upon each other, bouncing ideas around the table, getting instant feedback, having expert advice there in the room at the fingertips of the parties and lawyers. This is huge. In mediation, the process depends largely on the effectiveness of one person, the mediator, to find common ground, to reason, to suggest, to facilitate conversations, to decide what to share, and to balance power. In CL, it is a team effort to find solutions, to feed off of each other, even off of the other side. This is essential in order to explore the shared interests together and find a great solution, one that goes far above compromise.
One difference most pertinent to my work is the aspect of attorney representation as the integral part of the CL process. In some types of mediation (divorce for example), the parties are not usually represented by lawyers. In CL, parties must be represented by counsel. Sometimes, I get asked why attorneys are needed at all in CL. Whether the divorce is handled in CL, mediation, or traditional litigation, the court must approve the divorce. Collaborative attorneys put their legal knowledge and skills to draft and structure the parties’ solutions, in ways that will be acceptable to the court. Remember, the mediator will only facilitate the parties to reach an agreement. Whether the agreement will be legal or enforceable in court is not the concern of the mediator. Additionally, the mediator cannot give legal advice in the course of mediation. Often in divorce mediations, the disputants are left in the dark about their legal rights and responsibilities during the negotiation. There is inherent anxiety on the part of the disputants in mediation that they may be unknowingly signing away their rights. In CL, attorneys ensure that everyone is properly informed of their options and consequences from the legal perspective in every step in the process.
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