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Collaborative Law defined:
Collaborative Law Process has these key elements: 1) the voluntary and free exchange of information; 2) the pledge not to litigate and the withdrawal of both attorneys - and in most cases all of the other professionals on the team - should either party initiate litigation in spite of this pledge, and 3) the commitment to resolutions that respect the parties' shared goals.
Mediation defined:
Mediation may be thought of as "assisted negotiation.” Central to mediation is the concept of "informed consent." So long as participants understand the nature of a contemplated mediation process and effectively consent to participate in the described process, virtually any mediation process is possible and appropriate.
The Mediation Process is voluntary, collaborative, confidential, informative, impartial/neutral, self-controlled, time and cost efficient. Participants are encouraged to work together to solve your problem(s) and to reach what you perceive to be your best agreement without being forced into a decision. The process allows for full disclosure of information and protects the participants by offering confidentiality. Mediation discussions and all materials developed for a mediation are not admissible in any subsequent court or other contested proceeding, except for a finalized and signed mediated agreement. Your mediator is obligated to describe any exceptions to this general confidentiality of mediation. This allows the participants to share information fully and make educated decisions. The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. The parties always retain decision-making power.
Most importantly: The mediator has an equal and balanced responsibility to assist each mediating party and cannot favor the interests of any one party over another, nor should the mediator favor a particular result in the mediation. Your mediator is ethically obligated to acknowledge any substantive bias on substantive issues in discussion.
The goal of mediation is that since participants have actively resolved your own conflict, there is greater participant satisfaction, likelihood of compliance, increased self-esteem, and a greater ability to handle future conflict.
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What is the difference between Collaborative Practice and Mediation?
In mediation, an impartial third party (the mediator) facilitates the negotiations of the disputing parties and tries to help them settle their case. However, the mediator cannot give either party legal advice, and cannot be an advocate for either side. If there are lawyers for the parties, they may or may not be present at the mediation sessions, but if they are not present, the parties can consult their counsel between mediation sessions. Once an agreement is reached, a draft of the settlement terms is usually prepared by the mediator for review and editing by the parties and counsel.
Collaborative Law was designed to allow clients to have their lawyers with them during the negotiation process, while maintaining the same commitment to settlement as the sole agenda. It is the job of the lawyers, who have received training similar to the training that mediators receive in interest-based negotiation, to work with their own clients and one another to assure that the process stays balanced, positive and productive. Once an agreement is reached, it is drafted by the lawyers and reviewed and edited by the both lawyers and the parties, until both parties are satisfied with the document.
Both Collaborative Law and Mediation rely on the voluntary and free exchange of information and a commitment to resolutions that respect the parties' shared goals. If mediation does not result in a settlement, the parties may choose to use their counsel in litigation, if this is consistent with the scope of representation upon which the client and lawyer have agreed. In Collaborative Practice, the lawyers and parties sign an agreement, which aligns everyone’s interests in the direction of resolution, and specifically provides that the collaborative attorneys and any other professional team members will be disqualified from participating in litigation if the collaborative process is terminated without an agreement being reached. Professional advice should be sought when deciding whether mediation or Collaborative Practice is the best process for any individual case.
What is the difference between Collaborative Practice and conventional divorce?
In conventional divorce, one spouse sues the other for divorce and sets in motion a series of legal steps. These eventually result in a settlement achieved with the involvement of the court. Unfortunately, spouses going through a conventional divorce can come to view each other as adversaries, and their divorce as a battleground. The ensuing conflicts can take an immense toll on the emotions of all the participants, especially the children.
Collaborative Practice is a non-adversarial approach to divorce. The spouses—and their lawyers—pledge in writing not to go to court. They negotiate in good faith, and achieve a mutually-agreed upon settlement outside of court. The cooperative nature of Collaborative Practice can greatly ease the emotional strain caused by the breakup of a relationship, and protect the well-being of children.
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