Collaborate or Mediate? Part I

This is a question I’ve been getting from clients lately with increasing frequency.  When they make that decision to pursue divorce, and they want to go through that process as “gracefully” as possible, they have a number of choices.  There is no “one size fits all” way of divorcing, so their decision will be based on their personal situation, needs, and relationship with their spouse.

What they want to know, and often have a hard time grasping, is the difference between Collaboration and Mediation.

Here are a few ways the processes are similar:

1. Both are based on the interests, needs and goals of the clients.
2. Both allow the clients to be directly involved in creative problem solving of their issues.
3. Both offer opportunities for win-win solutions.
4. Both allow the clients to control the pace of their case and to resolve their issues without going to court.
5. Both usually take less time, cost less, and are less stressful to the family.

Here’s how they are different:

1. While mediation requires the clients to participate in good faith, it does not require them to make full and complete disclosure to the other side of all relevant information.  Collaboration requires complete “transparency” throughout.
2. In mediation, the clients may or may not have lawyers. If they do have lawyers, they may meet separately with their lawyer and strategize throughout the mediation. In collaboration, the clients have collaborative lawyers trained in the collaborative process, and the lawyers and clients do not strategize outside of the collaborative meetings.
3. If a mediation case does not settle, the clients’ lawyers may continue to represent them if they go to litigation. If a collaborative case doesn’t settle, the collaborative lawyers may not continue to represent the clients in any capacity, so the clients will need to hire new lawyers if they decide to go to court.
4. In mediation, the clients do not receive any legal advice unless lawyers are participating, since the mediator may not give legal advice.  In collaboration, clients have the benefit of legal advice and the lawyer’s experience throughout the process.
5. Mediation can actually take place even while parties are preparing for litigation.  In collaboration, the parties agree they will not litigate as long as they are in the process.

So how does a client know which process to choose for them?  That will depend on a number of factors.  Stay tuned for Part II of this series where we’ll explore this in more detail.