• June

    4

    2024
  • 126
  • 0
  • By Peaceful Mediation
  • In News

MEDIATION AND COLLABORATIVE LAW: WHAT’S THE DIFFERENCE?

You and your spouse definitely know you don’t want to go to court and litigate your divorce, custody, support or other Family court matters. You are seeking a peaceful and respectful process to end your marriage or discuss your custody schedule; you have researched mediation and collaborative law, and are just confused as to what the difference is in these two processes are. Below is a primer to hopefully assist you in this process.

  • THE ATTORNEY IN THE ROOM.  Each lawyer has their own process in mediation. In our office, lawyers for the parties do not enter the mediation room. Simply put, most lawyers are positional and adversarial. That is the opposite of what is needed in mediation. Clearly, both parties are welcome to engage their own lawyer to consult with privately, before and after mediation sessions. Your mediator is not going to advise you on what you should ask for or what is good for you. The mediator is neutral and independent. His or her job is to help you divide your assets and come to an agreement.

In Collaborative Law, the process is also peaceful and respectful. However, you hire a lawyer to be with you in the meeting room and represent your interests. The parties agree not to litigate in court, and to not threaten to do so.

The question you must therefore ask yourself is whether you are comfortable being “in the room” with you, the other party and your mediator; or, are you more comfortable having your lawyer by your side, in the room, during the process.

  • THE TEAM APPROACH.  Collaborative Law is a team approach to dispute resolution. The Team includes two collaboratively trained lawyers, one for each party. Also, the Team includes a collaboratively trained Divorce Coach, who is a therapist, and serves the parties as a communication specialist. This person is valuable in cases where parties have difficulty communicating with one another. Further, in many Collaborative cases, the Team includes a Financial Neutral. This person gathers all of the assets and liabilities of the parties, and assists the Team in analyzing the assets and putting them in a form that the parties can then use to discuss and amicably divide the assets and debts.

In Mediation, the mediation group includes the parties and the mediator. Good communication skills, between the two parties, are essential in the Mediation process.

Further, in very complicated financial/asset cases, the use of a Financial Neutral, such as in Collaborative Law, can be very helpful

  • TRUST AND RESPECT.  If there is a complete lack of trust in the other party, or an absence of respect, both mediation and collaborative law may not be appropriate. If there is a substantial history of hiding assets, transferring assets or not sharing assets between the parties, neither process may work for the parties.

If, however, there is some concern about trust or some concern about respect, engaging in the Collaborative process might be best. Here, the parties have the support of four experts to encourage the parties to complete the process in an appropriate manner.

On the other hand, if there is a high level of trust and respect between the parties, Mediation might be the appropriate choice. 

 

Only you know where your experience with your spouse fits on this continuum. If you wish to discuss it further, please contact us. 

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