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Mediation and Collaborative Law – what are the differences? by Lehna Gardiner

Mediation and Collaborative Law – what are the differences?


Mediation and collaborative law are both dispute resolution processes that aim to facilitate peaceful resolution of family conflicts without resorting to the court proceedings. Both processes share the overall objective of achieving mutually beneficial outcomes through cooperation and open communication. However, they differ in several significant aspects, including their underlying method, structure, and the roles of the participants.




Mediation


Mediation is a voluntary and confidential process in which a neutral third party, the mediator, assists the parties in reaching a mutually acceptable resolution. The mediator acts as a facilitator, guiding the parties through discussions to identify underlying interests, explore potential solutions, and help to reach an overall agreement. The mediator does not impose a decision. Instead, they empower the parties to reach a voluntary agreement.


Mediation enables the parties to have control over the process and outcome. They have the freedom to shape the resolution based on their needs and interests. The mediated agreement is not legally binding until the parties enter into a formal written settlement agreement.


Mediation is flexible, in that it allows parties to choose their own rules, procedures, and timelines, making it adaptable to the unique circumstances of each dispute. Mediation typically takes place in a non-adversarial and private environment, promoting open communication and fostering a collaborative atmosphere. Solicitors are usually not present.


Collaborative Law


Collaborative law is a structured, team-based approach to family dispute resolution that focuses on reaching a mutually satisfactory settlement through cooperative discussion and negotiations. Unlike mediation, in collaborative law each party is represented by their own collaboratively trained solicitor. The parties and their solicitors meet together to discuss and negotiate the terms of the settlement. This allows for a comprehensive exploration of all relevant aspects and promotes understanding and cooperation.


Collaborative solicitors advocate for their clients' interests in a non-positional way, whilst also promoting problem-solving. The solicitors are disqualified from representing their clients in any litigation if the collaborative process fails. This requirement incentives commitment to reaching a settlement.


In addition to solicitors, other professionals such as financial experts, child specialists, or divorce coaches may be involved in the collaborative process to address specific issues and provide expertise.


Comparison of the Processes


1. Mediation:

  • Emphasis on autonomy and self-determination.

  • Solicitors not usually present (but can be)

  • The mediator facilitates dialogue but does not provide legal advice or make decisions.

  • Parties have control over the outcome and can craft creative solutions.


2. Collaborative Law:

  • Joint 4-way meetings allow for comprehensive discussions and problem-solving.

  • Solicitors actively represent and advocate for their clients' interests but in a non-positional way.

  • The collaborative team may include other professionals with specific expertise.


Summary


While mediation and collaborative law share the same common goals, they differ significantly in their processes and dynamics. Mediation relies on a neutral mediator to facilitate communication. On the other hand, collaborative law involves specially trained solicitors and other professionals as necessary, and takes place as a series of 4-way meetings. Understanding the key differences between mediation and collaborative law can help people select the most suitable process for their specific needs and circumstances.

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