Differences between mediation & collaborative law

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Differences between mediation & collaborative law

Most parties would choose an out-of-court settlement versus a contested court hearing/trial. Parties do not want to be a part of the costs of a contested trial and emotional havoc. This is what leads lots of folks to inquire about mediation.

Mediation sounds less emotional and financially taxing. Parties that reach a settlement out of court might also be in a better place to be able to move on with their life and co-parenting with their ex spouse. Also, the idea of collaborative divorce sounds appealing to many parties as well. The term “collaborative” sounds similar to mediation to most. And the term itself denotes parties working together in an amicable and productive manner.

Of course, mediation and collaborative divorce are not the same processes. It is important for parties to understand the differences between these two processes if they are going to choose between them.

In divorce and family law mediation, parties meet with a mediator (typically, without an attorney) to try and resolve their dispute. In most cases, a full resolution cannot be reached in one session, but instead would require multiple sessions. The mediator’s job is simply to facilitate a discussion between the parties so that they can reach a creative resolution. It is not the job of the mediator to impose their will, force the parties to meet in the middle or dispense legal advice.

Mediation and collaborative divorce are not the same process. It is extremely important for parties to understand the differences between these two processes if they’re going to make a decision between the two. In divorce and family mediation, parties meet with a mediatory (without an attorney) to try and resolve the dispute. Usually a resolution cannot be reached in just one session, so multiple sessions are needed. The mediator’s main job is so facilitate a discussion between the two parties so they can each reach a resolution to the dispute.

If an agreement is met in the mediation, one or both of the parties will be required to hire an attorney to file for the divorce, ensure that the proper paperwork is completed, and to procure the signature of the judge either through a non-contested hearing. The reality is that in many mediated cases there ends up being three attorneys involved: the mediator, an attorney for husband and an attorney for wife.

In collaborative divorce and family law, the parties meet with their attorneys also present. Parties may also have collaborative professionals to assist, including: a divorce coach, financial neutral, or child custody professional. All of these parties can help the collaborative process to ensure that a resolution can be reached. Typically, for a settlement to be reached, the process will require multiple sessions.

A divorce coach assists each spouse manage the emotional strain of changing relationships while focusing on goals for the present and future. A financial neutral helps the parties identify options and alternatives by reviewing the financial aspects of the case. A child custody professional helps the parties create custody schedules to fit the specific needs of the family.

Further, unlike mediation, if the parties are able to reach a resolution in the collaborative process, the attorneys for husband and wife can file the divorce and complete the process in court. This is distinctively different from mediation in most instances where the attorney who completes the process is not part of the mediation sessions.

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