WHAT IS THE DIFFERENCE BETWEEN COLLABORATIVE LAW AND MEDIATION?

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WHAT IS THE DIFFERENCE BETWEEN COLLABORATIVE LAW AND MEDIATION?

Mediation vs. Collaborative Divorce: Divorce Mediation Process

Although our clients have many questions about the difference between mediation and collaborative law, the distinction is actually quite clear.

Mediation is another form of alternative dispute resolution. With mediation, the parties select a trained mediator, who is usually an attorney to help them resolve their case. The mediator is a neutral and cannot provide legal advice to either party. A mediator facilitates the discussion about settlement with both parties. A mediator does not decide the issue like an arbitrator. A mediator can make suggestions about how to resolve conflicts but cannot tell you if a settlement proposal is fair to you. 

This is why we recommend that parties who decide to go through a divorce mediation process do so either with their attorney present or with an attorney available to consult with before final agreements are reached. The outcome of a successful mediation can be a binding marital settlement agreement or a memorandum of essential terms called a memorandum of understanding.

 

Mediation works successfully for many divorcing families.  We have found that while cooperative couples more readily choose to mediate, families with high degrees of conflict need mediation even more due to the high costs of litigation, which often provokes additional conflict. 

 

Mediation vs. Collaborative Divorce: Indicators of Success

We have developed the following indicators to help clients confirm their decision to pursue mediation vs collaborative divorce.  An absence of many of the indicators does not make successful mediation impossible.  However, it does mean that disputes may be more difficult and costly to settle.

 

  1.       The grieving process is ongoing or complete for both parties.
  2.       The attorneys retained by the parties are experienced in and supportive of mediation.
  1.       There are no acts of hiding assets.
  2.       There are no acts of denying access to the child(ren).
  3.       Both parties agree to total accessibility to documentation regarding assets, liabilities, and income.
  1.       There is no history of violence or abuse.
  2.       The parties have a history of cooperative and successful problem solving on some issues.
  1.       The parties are capable and willing to communicate with each other and with the mediator in a reasonable and civil manner.
  1.       There is some pressure to settle because of time, high attorney’s costs, or unpredictable outcome.
  1.     There are adequate resources to find a compromise (limited resources tend to create more competitive relationships and striving for win/lose outcomes).
  1.     The parties’ desire for the settlement of the dispute is high.

Mediation vs. Collaborative Divorce: Mediation Details

Mediation sessions are usually 1-3 hours in length.  The mediator helps the parties resolve conflict by:  1) providing a safe place for the parties to communicate; 2) helps the parties create options for resolutions; and 3) helps the parties think about open issues from different perspectives.

 All communications during mediation are confidential and can never be used against you in a court of law.  Most divorce mediations last between three to six sessions.  After the initial orientation to explain the mediation process, parties will meet with the mediator for their first joint mediation session.  After the first joint session, the mediator will then conduct individual or joint sessions as agreed until settlement is reached. 

 

Mediation vs Collaborative Divorce: Benefits to Mediation

 

  •                   Parties appreciate the increased privacy of mediation.
  •                   Attorneys bill significantly fewer hours when a case is in mediation
  •                   Attorneys as well as parties express a high level of satisfaction
  •                   72% of attorneys report that divorce mediation is less costly for their clients
  •                   The range of solutions is far wider in mediation
  •                   Over 90% of cases referred to mediation result in written agreements
  •                   Over 80% of the parties are satisfied with the terms of the mediated agreement
  •                   Divorce mediation cost is cheaper than divorce court. Cost savings of using mediation is over 50%
  •                   90% of mediation participants felt that the divorce mediation process was clear, the mediator had good ideas, and that they had been listened to
  •                   Parties are more likely to abide by the terms of a mediation agreement
  •                   Mediating cases ends disputes faster
  •                   Parties save significant attorney fees, expert witness fees, and other costs
  •                   Overall costs of mediated agreements are 40% less than matters resolved through litigation
  •                   Over 50% participants felt they changed the way they handled conflicts from their mediation experience and 70% of family members reported less arguing and fighting for months following the mediation
  •                   Nearly 60% of participants report that they better understood the other person’s point of view following the mediation
  •                   90% of participants felt the divorce mediation process was good. Quicker settlements increase satisfaction levels for both clients and attorneys.
  •                   77% of participants expressed extreme satisfaction with the divorce mediation process. A substantial portion of those who failed to reach an agreement in mediation believed mediation was useful and would recommend it to others.

 

Mediation vs. Collaborative Divorce: Drawbacks of Mediation

 

  •                   Mediators cannot give you legal advice
  •                   Mediation does not work where mental illness, domestic violence or abuse, or substance abuse is present
  •                   Mediation does not work with couples who cannot communicate openly and respectfully
  •                   Mediation is not appropriate where dishonesty or hiding of assets or other important facts is occurring
  •                   Mediation does not guarantee a fair outcome unless your private attorney is also participating

 

What is the difference between collaborative law and mediation?

 

The latest form of alternative dispute resolution to become available is known as collaborative divorce. Many people ask about collaborative divorce, but most don’t understand the difference between collaborative law and mediation. With collaborative divorce, unlike mediation, you and your spouse are each working with your own, independent attorney. There may also be other experts included in the process. The distinguishing feature of collaborative divorces is that all parties and the attorneys must sign a contract called a participation agreement in which everyone agrees they will not file a court action for divorce before the case is fully resolved.

 

Mediation vs. Collaborative Divorce: What Does Collaborative Divorce Mean?

 

In a collaborative divorce, it is common to involve more professionals than simply the attorneys. What type of professionals you might want to include in your case depends on your specific set of circumstances. If one or both of you feels that you may benefit from someone being present for additional emotional support, you may want to include a therapist or counselor. If there are complicated financial issues, you may want to engage an accountant or financial planner. Of course, you will also each be represented by an attorney in this process. What all of these individuals will have in common is that they must have been trained in collaborative divorce to participate in the process. Therefore, if you decide that you want to proceed with a collaborative divorce, be sure that you retain a collaboratively trained divorce attorney.

 

Mediation vs. Collaborative Divorce: Does Collaborative Divorce Work?

 

The biggest drawback of collaborative divorce is that if the collaborative divorce process fails – meaning that if you are unable to reach a resolution to your case – you need to start over with new attorneys. This means that you cannot simply have your collaborative divorce attorney move ahead with litigation by filing a complaint for divorce. Each party must then hire entirely new attorneys to represent them.

 

Mediation vs. Collaborative Divorce: Is Mediation Cheaper Than Collaborative Divorce?

 

Due to the fact that additional individuals, such as counselors and financial planners, are required for the process, a collaborative divorce may result in being more costly. You will likely need to pay a retainer – or at the very least, the hourly rate – for all individuals who are involved in the case. In most non-collaborative divorce cases, you pay just for your attorney’s time and perhaps an expert if it’s determined that one is needed. 

 

Mediation vs. Collaborative Divorce: Benefits of Collaborative Divorce

 

  1.     Commitment. When you embark on the collaborative process with your spouse, you are both committing to resolving your divorce amicably through a negotiated settlement and to avoid litigation where a court would decide your future. There are obvious benefits to this type of dispute resolution as it allows the parties to craft a settlement that works best for them, rather than having a settlement imposed on them by a judge.
  2.     Transparency. There is a free flow of information and communication between the parties, the lawyers and any other experts involved. Nothing is hidden. The parties have to believe that their spouse has inherent integrity to participate in the collaborative process truthfully and with candor.
  3.     Efficiency. As with mediation, negotiations are immediate and done face to face. This type of communication speeds up the process of divorce over conventional divorce litigation. This also provides the parties and the attorneys to address issues that come up right away rather than letting things fester and get out of hand.

 

The attorneys at DeTorres & DeGeorge Family Law have certifications in divorce mediation and collaborative divorce to assist you in resolving your case. Give us a call today if you have questions about the difference  between collaborative law and mediation, and which option is appropriate for you.

Caitlin DeGuilo Toker
Caitlin DeGuilo Toker joined DeTorres and DeGeorge as an associate attorney in June 2014 and was named a partner of the firm in May 2019.Prior to joining the firm, Caitlin was associated with law firms specializing in the practice of family ...
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