Wednesday, June 1, 2016

Collaborative Law Compared to Mediation: Which is Better?

Mediation.  Both Collaborative Law and mediation are dispute resolution processes.  Mediation is commonly used in divorce litigation and in other contexts.  I am a mediator and I strongly believe in the value of mediation.  It is great for settling litigated cases of all types.  Almost every divorce case, and most other family law cases in Tarrant County go to mediation before the Judge will consider letting them go to trial, and almost all will settle in mediation.

Collaboration.  Collaborative Law is a great process for settling divorces, but it approaches settlement entirely differently.  While mediation occurs late in the process, often just before a trial date, Collaboration begins at the start of the case.  There are a series of relatively short meetings in Collaborative, rather than one big day of mediation.

There are some other significant differences between the two processes.  Here are some to consider.

1.  Mediation relies on a sole mediation usually, while Collaborative Law utilizes a team approach with a neutral therapist and a neutral financial advisor.  In addition, in Collaborative cases, the attorneys commit to a different role, working together to make sure no one is taken advantage of, than they follow in mediation.

2.  There are essentially different goals.  In mediation, the bargaining often involves staking out extreme starting positions so the parties can move to an acceptable middle ground.  In Collaborative, the parties explain their goals and needs up front and then both sides commit to helping the parties each meet their goals.

3.  In Collaborative, the parties freely share information; in mediation, the parties generally get their information through Discovery and often use motions and hearings to get information.

4.  In Collaborative Law, the parties agree at the beginning to not take advantage of mistakes.  In Mediation, that's not the case.  The parties have to look out for themselves and be as careful as they can be. Mistakes happen in litigation and mediation and it's too bad.

5.  In Collaborative, single, neutral experts are routinely used.  That only happens occasionally in litigation and mediation. The parties work together with their experts in Collaborative.

What all of this means is that Collaborative Law is a safer, more flexible process that is tuned to the needs of both parties.  If you are using litigation for a divorce, get to mediation as soon as possible so you can get the case settled.  If you are just starting on your divorce, look seriously at using Collaborative Law for a better process and a better result.

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