The Difference Between Mediation and Collaborative Divorce

The following information is adapted from the website of the International Academy of Collaborative Professionals. For more information abut IACP visit www.collaborativepractice.com.

In mediation, an impartial third party (the mediator) facilitates the negotiations of the divorcing couple 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. If the attorneys are present, the parties can consult with them 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 their lawyers.

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. The lawyers have received training in interest-based negotiation, similar to that which the mediators receive. It is the attorney’s job 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 both lawyers and both parties, until all are satisfied with the document.

Both Collaborative Divorce and mediation rely on the voluntary and free exchange of information and a commitment to resolutions that respect the parties' shared goals. Key differences are:

• 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 Divorce, the lawyers and parties sign an agreement, which aligns everyone’s interests in the direction of resolution, and specifically states 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.