In mediation, an impartial third party – the mediator – assists the negotiations of both parties and tries to help settle your case. However, the mediator cannot give either of you legal advice or be an advocate for either side. If there are lawyers for each of you, they may or may not be present at the mediation sessions, but if they are not present, then you can consult them between mediation sessions. When there is an agreement, the mediator prepares a draft of the settlement terms for review and editing by both you and your lawyers.
The Collaborative Practice allows you both to have lawyers present during the negotiation process to keep settlement as the top priority. The lawyers, who have training similar to mediators, work with their clients and one another to assure a balanced process that’s positive and productive. When there is agreement, a document is drafted by the lawyers, and reviewed and edited by you both until everyone is satisfied.
Both Collaborative Practice and mediation rely on voluntary, free exchange of information and commitment to resolutions respecting everyone’s shared goals. If mediation doesn’t result in a settlement, you may choose to use your counsel in litigation, if this is what you and your lawyer have agreed. In Collaborative Practice, the lawyers and parties sign an agreement aligning everyone’s interests in resolution. It specifically states that the Collaborative attorneys and team professionals are disqualified from participating in litigation if the Collaborative process ends without reaching an agreement. Your choice of mediation or Collaborative Practice should be made with professional advice.
A Collaborative team is the combination of professionals that you choose to work with to resolve your issues. It generally consists of each of you, your Collaborative lawyers, a neutral mental health professional, and a neutral financial professional. Other specialists you and your spouse believe would be helpful may be added to the team. Your “Collaborative team” will guide and support you as problem-solvers, not as adversaries.
In conventional litigation, parties rely upon the court system and judges to resolve their disputes. Unfortunately, in a conventional situation you often come to view each other as adversaries, and your family issues become a battleground. The resulting conflicts take an immense toll on emotions-especially the children’s. Collaborative Practice is by definition a non-adversarial approach. Your lawyers pledge in writing not to go to court. They negotiate in good faith, and work together with you to achieve mutual settlement outside the courts. Collaborative Practice eases the emotional strains of family issues, and protects the well-being of children.
When you decide on the Collaborative Process, each of you hires a Collaborative Practice lawyer. Everyone agrees in writing not to go to court. Next, you meet privately and in face-to-face talks with your lawyers. The mental health neutral and the financial neutral join the team, or perhaps were the first professional that you saw. All meetings are intended to produce an honest exchange of information and clear understanding about needs and expectations, especially concerning the well-being of children. Mutual problem-solving by all parties leads to the final solution and written agreement.
Your situation determines how quickly your resolution proceeds. However, Collaborative Practice can be more direct and efficient. By focusing on problem-solving-instead of blame and grievances-there’s an opportunity to strive for respectful results. Full disclosure and open communications assure that you cover all the issues in a timely manner. And since you settle out of court, there’s no wait for the multiple court dates necessary with conventional family litigation.
The Collaborative process helps you anticipate and include your need to move forward, and makes the future of your children a top priority. As a more respectful, dignified process, Collaborative Practice supports your family’s goals for a smoother transition to the next stage of your lives.
Collaborative Practice is guided by a very important principle: respect. By setting a respectful tone, Collaborative Practice encourages the divorcing spouses to demonstrate compassion, understanding and cooperation. In addition, Collaborative professionals are trained in non-confrontational negotiation to help keep discussions productive. The goal of Collaborative Practice is to build a settlement on areas of agreement, not to perpetuate disagreement.