What is the difference between mediation and Collaborative Practice? This question is often asked by a person trying to choose which process might work better for their situation. Currently, the question is more likely being asked by someone facing divorce or separation or the end of a domestic partnership, areas in which the use of Collaborative Practice is well established. However, the use of Collaborative Practice is expanding to estate planning and probate, commercial, employment and other areas of civil practice, so the ability to explain the difference between the processes to potential clients is important for professionals in many practice areas.
Mediation is a voluntary process in which the parties make decisions together based on their understanding of their own views, each other’s views, and the reality they face. Is Collaborative Practice any different? The intent is the same and the differences can be subtle.
Typically, a matrimonial mediation does not have lawyers present in the room. This works well for people who feel that they truly know their own mind and situation and with the help of the mediator, are comfortable speaking for themselves. They may not need the presence or support of additional professionals to reach an agreement. They often choose mediation in order to have a more direct influence and control over the process and the outcome.
When lawyers are present in the mediation room, they may be advocating for their clients’ positions within the context of the mediation, but may also be planning for the possibility of litigation. For some clients, it can provide a sense of comfort and continuity to know that they have continued representation by someone prepared to protect them until a final resolution, whether in mediation or litigation. This sense of safety will then allow them to participate more fully in the mediation process.
The mediator’s role, with or without lawyers present, is to manage the process, meaning the mediator is responsible to make sure both parties are heard and understood and that enough information about the parties’ situation and the law is presented for informed decisions to be made by both parties. The mediator facilitates a conversation between the parties and also makes sure that conversation is held from a place of understanding and reasonable equality of influence. For some clients, feeling “heard” by a neutral third party is a key step in being ready to reach an agreement and the mediator can provide this function as well.
Collaborative Practice is also a voluntary process, but one in which lawyers are present as allies for the parties and will not be involved in litigation. In Collaborative discussions, lawyers are not aligned with their clients’ positions. They seek to understand not only the view of their own client but also the perspective of the other party or parties. There are often mental health and financial professionals who work together with the lawyers to form a collaborative team that attends to the emotional, financial and legal aspects of the parties’ situation. The collaborative team is jointly responsible for managing the process for the benefit of all parties. The singular focus of all of the professionals and the parties on settlement while in the Collaborative Process often changes the quality and content of the discussions so that people feel freer to talk about what is happening on many levels and on what really matters to the parties, which can lead to a more satisfying resolution.
People who feel they need more support in the process often choose Collaborative Practice. There may be an imbalance of power or dynamics or challenges in communication which will benefit from the assistance of mental health professionals. Or there may be an imbalance in information, or a perceived or actual lack of sophistication with financial concepts, that can be addressed with the help of financial professionals. The collaborative team can help the parties determine what resources and professionals will be most useful for them.
How do the parties choose the process? There is no one process that is the right answer for everyone. The right process is the one that meets the needs for each individual situation, matching the parties to the mix of professionals and process that works for them.