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The Collaborative Process or Mediation: What is the Difference?

When suggesting the Collaborative Process to a client, they often ask “is it similar to or the same as mediation?” The answer is yes and no. Admittedly, it is more easily distinguishable to a family law professional who has the vantage point of having experienced both routes. To an individual about to embark on a family case for the first time, it is not as clear of a difference. The goal of this piece is to elaborate on the differences and similarities between the Collaborative Process and Mediation.

Mediation:

  • What is it? Mediation is a singular event that occurs once (maybe twice) at a specific point during a traditional litigation case.
  • When does it occur? Usually towards the end of the case, once the parties have exchanged full financial disclosure and are ready to negotiate and resolve as many, if not all, of the issues in their case.
  • How long can it take? Mediation can be a very long event. It is not unusual for a mediation to take anywhere between 4 to 8+ hours. This often results in fatigue for the parties because they are contemplating and making definitive decisions on all issues of their case.
  • What if there is no agreement? The case remains unresolved, the mediation is categorized as an “impasse” and the next step is a trial in order for the Judge to make a determination and decision on all unresolved issues.
  • Success Rate: 90% of cases submitted to mediation will settle.
  • Pros: It gives parties the opportunity to resolve their case prior to giving the Judge the reigns over the case. Additionally, resolving the case at this juncture, helps parties avoid the extensive attorney’s fees associated with having a case proceed to trial.
  • Cons: By the time parties go to mediation, they have potentially already been exposed to substantial litigation which is an emotionally and mentally draining experience. There is minimal or limited communication between the parties prior to mediating. Additionally, mediation feels like a sprint you did not train for. As a result, sometimes the dynamic between the time mediations can take and the magnitude of the issues being addressed, often make parties feel like they “settled” rather than resolved their case—leaving them with buyer’s remorse.

The Collaborative Process:

  • What is it? The Collaborative Process is a series of team meetings that occur outside of the traditional court/litigation setting.
  • When does it occur? These meetings take place—not towards the end of the case—but rather, throughout the case. This allows the participants to address all issues without having to do so all at once and risk litigation fatigue.
  • How long can it take? On average, the process overall can take between 3 – 5 team meetings depending on the particular issues present in a case. The meetings themselves are two hours for the participants. Each meeting includes an Agenda listing the topics that will be addressed thereby allowing the meetings to run smoothly.
  • What if there is no agreement? The goal isn’t to reach an agreement after and every meeting but rather to present the participants with option building scenarios. Engage in interest-based negotiations and ultimately, reach a consensus on each issue resulting in the ability of the team to draft an Agreement that is then reviewed and approved by the participants.
  • Success Rate: 93% of Collaborative cases are successfully resolved.
  • Pros: This process offers a holistic setting with access not only to legal guidance but also neutral facilitators that provide emotional and mental support throughout the process as well as Financial professionals that help participants understand the financial impacts associated with their case. Cases that are resolved collaboratively have a statistically higher chance of avoiding future litigation. The ample opportunities for communication limits miscommunication/misunderstandings and creates a better, more positive experience and outcome for families, especially those with children. 
  • Cons: In the event a Collaborative case falls within the 7% failure rate, the participants must hire new attorneys, as the attorneys involved in the collaborative case cannot represent them in traditional litigation. The intent is to avoid any conflict of interest between professionals involved and the transparent nature of the collaborative process versus traditional litigation. 

Ultimately, the statistical difference between mediation and the collaborative process is almost non-existent. Families who choose to handle their case in traditional litigation or within the collaborative process will all eventually reach their destination—the end of their case. The real difference between the two is which journey they take to get there and once there, whether they arrive in one piece rather than in pieces.

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