Collaborative Law, Mediation Take Different Paths, Both Lead to Settlement

Often, when trying to explain collaborative law to a prospective client, we find ourselves comparing this method of alternative dispute resolution to its better-known cousin, mediation.

Timing is an important difference between the collaborative process and mediation. Most parties choose between collaborative law and litigation at the start of a case, before money is spent on discovery. Mediation is a part of  the litigation process that usually takes place after discovery is complete.

In mediation, an impartial mediator helps both parties try to settle the case. The mediator cannot give legal advice or be an advocate for either side. If there are lawyers for each party, they may or may not be present at the mediation sessions. If they are not present, the parties can consult them between mediation sessions. Once an agreement is reached, the mediator prepares a draft of the settlement terms for review and editing.

Collaborative law allows the parties to have lawyers present during the negotiation process to keep settlement as the top priority. The lawyers, most of whom are especially trained for this, 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 until everyone is satisfied.

Both collaborative law and mediation rely on a voluntary, exchange of information and commitment to resolutions respecting everyone’s shared goals. If mediation doesn’t result in a settlement, a party may choose to use the same counsel in litigation. In collaborative law,  lawyers and parties sign an agreement that specifically states the collaborative attorneys and other professional team members are disqualified from participating in litigation if the collaborative process ends without reaching an agreement.

Both methods are meant to keep cases out of court, but they are very different in how they accomplish their goals.