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Many people call my office confused about the differences between the Collaborative Law Process and Mediation. Both methodologies are designed to assist clients resolve their marital issues in a respectful and dignified manner, but there are important differences. For all couples who have decided it is the time to end of their marriage, and who wish to do so by making their own decisions, the goal will be a Dissolution of Marriage (as opposed to Divorce). Obviously, the first step is to decide how to go about doing just that.
The choice between Mediation and the Collaborative Law Process can be dictated by several important factors. The first, and probably most important, is whether you wish to have legal representation present while you and your spouse are discussing your respective goals and interests, or whether you are comfortable utilizing a single neutral mediator to facilitate your negotiations. Attorneys who function as mediators do not represent either party, and they are prohibited from providing legal advice, although they are very well suited to lead you in discussion of all the necessary and important legal matters such as custody, support and division of property.
If you choose Mediation, and find a suitable mediator, you are still able to have your own lawyer for advice and counsel, however, most typically, the individual lawyers are not present for you sessions with the mediator. At the conclusion of your Mediation Process, a Mediation Report, which outlines the various agreements reached in Mediation, can be prepared and delivered to your lawyer(s) as the basis for your Parenting Plan and Separation Agreement which will then be filed with the Petition for Dissolution. Mediation, like Collaborative Law, is voluntary, and no agreements are binding until signed off with advice of your lawyer or approval by a court.
If you would be more comfortable with your lawyer present for all aspects of the necessary conversations with your soon to be former spouse; discussions about parenting schedules and child-rearing priorities; division of assets; allocation of income and expenses; you most likely will want to opt for the Collaborative Law Process, as opposed to Mediation.
The Collaborative Law Process, like Mediation, is also voluntary. Your goals and interests are also of primary concern. The difference, however, is that each spouse has a Collaborative Lawyer present as all information is exchanged and all options are generated. Additionally, both attorneys and both clients are together as the consequences of each option, both negative and positive for each client, are discussed and evaluated. This is because in the Collaborative Process limits each attorneys role, and there is never a possibility that either attorney may someday be cross-examining the other client in an adversarial litigation process. Your lawyers will be providing you with legal advice and counsel, ensuring no mistakes are made and helping you make important evaluations at each step of the negotiation, but never will they be advocating in an adversarial setting. This is a difference from your lawyer’s role hired on the side during Mediation. Depending upon which lawyer you choose, this can be a positive or a negative. All of the choices, however, begin and end with you, and not a magistrate or judge.