Mediation vs. Collaborative Law: What are the Important Distinctions?

The differences between mediation and collaborative law can sometimes seems quite subtle and difficult to explain.  The easiest “answer” is that in one context you have yoru own lawyer “negotiating” on your behalf—but there is more to it than that. 

 

Both are non-adversarial processes during which you hope to focus on interest-based negotiations as opposed to “win/lose” tactics.  Both are voluntary and require the cooperation of both parties.

They are different in that the information exchange process is usually different, with Collaborative Law having a slightly more formal discovery mechanism.  Further, in Collaborative Law, the couple works with the assistance of a full team, which includes professionals who will work with the couple independently based upon their expertise.  By way of example, while a mediator may be a lawyer helping the parties work out a parenting plan and the financial issues, the Collaborative Team will include a Divorce Coach (usually a therapist/social worker) who will work on the parenting plan with the parties and a Financial Neutral (usually an accountant or certified financial advisor or planner) who will work on the support/equitable distribution issues.

Also—depending upon the format of the mediation, who is involved, and where the parties are in the process, you could engage in negotiations via “shuttle diplomacy” wherein the parties are separated and negotiate through the mediator as opposed to with the other party.  In Collaborative Law, the parties always remain together as the negotiations play out.

In mediation, the process is focused upon the efforts of one person, the mediator, to do the work, to find common ground, to reason, to suggest, to think, to convey information, to decide what to share, what to stress and what to minimize. The mediator, as a go-between, is the key to its success. In Collaborative Divorce, the focal point is not any one person; it is the collaboration itself. It is all about the collective ability of all those involved in one discussion, one negotiation, one effort, to find the options for resolution that work best for all those involved. It is a team effort to find solutions, to feed off of each other, even off of the other side. It is a process that calls on the parties and their lawyers to listen to and to build on each other’s ideas and suggestions, even when they are the ideas of his counterpart counsel on the other side. It is in this collaboration, this integrated effort, that the process can find a third way, a better way than either of the “ways” of one side or the other.

There are certainly more nuanced differences—but when considering the two options, focus on the idea of having a team support you in resolving your issues vs. having a single mediator facilitate your discussions with your spouse.

David Cardamone