The Differences between Collaborative Practice and Mediation
Collaborative Practice and mediation are like cousins. They share some similarities yet have some differences. Let me explain.
Mediation: A mediator is a neutral third party who meets with both clients to assist them in negotiating an agreement. The mediator will not offer legal advice and does not act as a judge and tell the clients what they should do. Instead, the mediator helps you explain yourself well and ensures that your spouse hears and understands your version of the story. By asking questions and being curious, the mediator helps each client articulate the core concerns that underlie their position on each issue. Once the core concerns (or some call them your “interests”) are understood, the parties brainstorm potential solutions that take both client’s core concerns into account and evaluate each idea to resolve the issues.
Clients rarely attend mediation with their lawyers. After the mediation, the mediator creates a report which is then taken to the clients’ lawyers. Legal advice about the agreement is offered. The mediation report is not legally binding. If the clients are still in agreement, then the terms are used as the basis of a separation Agreement written by the lawyers and signed by the clients. The separation agreement is legally binding.
Collaborative Practice: In Collaborative Practice both you and your spouse have your own lawyer throughout the process. You will share a Family Coach who will help you work through the emotional issues, prepare you for negotiations and help you develop a parenting plan. You will also work with a Financial Specialist who will help you resolve the financial issues. The Family Coach and Financial Specialist work in a manner similar to the mediator, working to discover your core concerns, but they also will educate you about the latest research on the issues. The Family Coach and Financial Specialist also help minimize your legal costs as their hourly rates are substantially less than a lawyers’ hourly rates and you share the cost of the Family Coach and Financial Specialist.
The Differences: Unlike mediators, Collaborative Practice lawyers are not neutrals. They advocate for you and assist you to reach long-term resolutions of your issues. In doing so, your lawyer will take into consideration your spouse’s core concerns to ensure that an agreement will be long-lasting and acceptable to both clients. The most striking difference is that in Collaborative Practice, the Family Coach and Financial Specialist helps educate you and your spouse to the best decision for yourself and your family. The Family Coach helps you work through the emotional journey inherent to divorce so you won’t be side-tracked by your emotions in the negotiations.
The Similarities: Mediation and Collaborative Practice are similar in the following ways:
- During both processes, core concerns are discovered and taken into account in the resolution.
- Both processes are forward-looking and focused on problem-solving instead of finding blame.
- Your relationship with your spouse is more likely preserved and you will learn new ways of communicating and working together cooperatively.
- You and your spouse maintain control over the resolution process and outcome. In court, you give the judge the power to make decisions.
- Your process is private and confidential. Court is open to the public.
- Mediation and Collaborative are substantially less costly than court, both financially and emotionally.
- Normally, both processes are much faster in achieving a resolution than the court process.
- Creative solutions can be achieved outside of the legal frame-work to the benefit of both parties.
- The goal is to achieve win-win resolutions that meet the core concerns of both parties.
- Both processes support the clients communicating respectfully and honestly.
- Both processes maintain the dignity of both parties.
See the Collaborative Roadmap Here.
Mediators and Collaborative practitioners are kindred spirits. They are problems-solvers helping you and your spouse resolve your issues in a respectful, dignified manner. Your lawyer can help you determine which process is best for your situation.