Collaborative law and mediation – a brief comparison

Mediation and collaborative law – similarities

Mediation and collaborative law (also known as the collaborative process or collaborative practice) are family dispute resolution methods that promote resolution.

The goals in both methods are:

    • open up lines of communication
    • identify each party’s goals and interests
    • resolve parenting issues in a child-focused manner in accordance with the best interests of the children
    • exchange financial information voluntarily
    • ensure that both parties receive independent legal advice and understand their legal rights
    • brainstorm solutions to create options, not win-lose
    • avoid court, thus saving time and expense and maintain privacy (court is public)

    Benefits of collaborative law

    • Lawyers have specialized collaborative training to help resolve conflict and create resolutions. 
    • Meetings that include both parties and their lawyers are the routine.  This means that understanding each party’s concerns, providing legal advice and exploring options for settlement can be dealt with at the same time. 
    • Costs are reduced and the process runs more smoothly when neutral collaborative professionals are involved.  For example:
      • A family professional helps the couple improve communication, de-escalate conflict, and create a parenting plan.
      • A financial professional gathers financial information, ensures that everyone understands the financial information, and helps the couple explore options.   
    • The costs of the family and financial professional are shared.  Although people often assume that the collaborative process is expensive because of the number of professionals involved, in fact, it can reduce the overall expense significantly and speed up resolution.  Couples can work separately with these neutral collaborative professionals, thus reducing legal fees that lawyers would otherwise charge.

    Benefits of mediation

    • Both parties meet with a mediator who guides the parties towards a resolution. 
    • The mediator helps to identify  the issues and helps the couple to consider various options.  The mediator facilitates constructive discussions.
    • The couple is actively involved in all aspects of the mediation.  This works well when both parties are feeling equally empowered to assert their concerns and negotiate on an even playing field.
    • Mediation can be tailored to a specific issue.  For example, the mediation can be solely for the purpose of creating a parenting plan.
    • The mediator remains neutral throughout and cannot provide legal advice.    Clients are encouraged to consult their lawyers in between mediation sessions so that they can make informed decisions in mediation.  Sometimes lawyers attend the mediation sessions.
    • If the couple negotiates most or all of the issues on their own with the mediator’s assistance, overall legal expenses are reduced.

    Is collaborative law or mediation best for me?

    It is not possible in this brief article to explain when mediation or collaboration is best for any particular case.  Mediation works well when there are no concerns about power imbalances and each person is able to assert their concerns and negotiate freely.  Collaborative law is beneficial when the legal issues or the family dynamics are more complicated.   For some people either method could be used successfully.  

    When mediation and collaborative law may not be appropriate

    Court can be necessary over mediation and collaboration for many reasons, including cases involving family violence.  Consult a lawyer to obtain legal advice about whether to resolve your case through court or through a family dispute resolution method such as mediation or collaborative law.