When it comes to divorce, there are multiple ways for parties to arrive at an agreement. Occasionally I am asked by clients to review a marital settlement agreement that was reached as a result of a mediation conference. There are also occasions when clients come to an initial meeting with me and ask the difference between mediation and Collaborative Law. Although there is an increasing awareness of both alternatives, it is still common to get elements of the two processes confused. In order to distinguish more clearly between the two, especially for those who may be interested in pursuing either as an alternative route in their divorce, the following is my explanation in a nutshell.
In mediation, an impartial third party, who acts as the mediator, assists the parties with their negotiations and tries to help them settle their dispute. The mediator does not have to be an attorney and cannot act as an advocate for either side or give either party legal advice. In other words, if an agreement contains terms that are grossly unfair to one party, the mediator may not recognize them and, even if he or she does, is not permitted to give legal advice about the issue or any other issue. If both parties have attorneys who are not present at the mediation, they are free to contact them for advice in between mediation sessions. However, when the attorneys are not present during mediation, they are essentially unable to give their clients legal advice throughout the ongoing negotiations. Once an agreement has been reached between the parties, the mediator will typically prepare a draft of it for review and comment by the parties and attorneys before it is signed.
Alternatively, in a collaborative divorce, both parties’ attorneys are present during the negotiation process, which takes place during settlement conferences. There is no mediator present, but lawyers who practice Collaborative Law have usually received training similar to a mediator and can offer the parties similar benefits, in addition to legal advice. In collaborative divorces, the attorneys work with their clients and the other parties to encourage communication and ensure a balanced outcome that is acceptable to both sides. When an agreement is reached, the lawyers prepare a draft of the document, which the parties review prior to signature.
The hallmark of the collaborative process is the participation agreement, a contract in which both parties agree that they will not go to court but will attempt to come to a resolution via the collaborative method. In the event the collaborative process does break down, both attorneys are prohibited from further representation of their specific clients and may not represent them in the litigation process. In both mediation and collaborative divorce, there is the potential that the parties may fail to come to an agreement; however, more often than not, a couple who commits to this type of negotiation experience success with these methods.
Mediation and Collaborative Law are both viable alternatives to the litigation divorce process for those who would like to find a resolution without going through the court system. The Collaborative Law methodology often allows parties to reach an agreement in a more informed and cooperative manner. I encourage those who are interested in either mediation or Collaborative Law to consult an attorney to discuss which type of resolution would be best to pursue in their individual situation.
Julie Miller is an attorney at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. She received her law degree from Dickinson School of Law and practices in a variety of areas including Family Law and Collaborative Law .