Collaborative Law defined:
Collaborative Law Process has these key elements: 1) the voluntary and free
exchange of information; 2) the pledge not to litigate and the withdrawal
of both attorneys - and in most cases all of the other professionals on the
team - should either party initiate litigation in spite of this pledge, and
3) the commitment to resolutions that respect the parties' shared goals.
Mediation defined:
Mediation may be thought of as "assisted negotiation.” Central to mediation
is the concept of "informed consent." So long as participants understand
the nature of a contemplated mediation process and effectively consent to
participate in the described process, virtually any mediation process is possible
and appropriate.
The Mediation Process is voluntary, collaborative, confidential, informative, impartial/neutral, self-controlled, time and cost efficient. Participants are encouraged to work together to solve your problem(s) and to reach what you perceive to be your best agreement without being forced into a decision. The process allows for full disclosure of information and protects the participants by offering confidentiality. Mediation discussions and all materials developed for a mediation are not admissible in any subsequent court or other contested proceeding, except for a finalized and signed mediated agreement. Your mediator is obligated to describe any exceptions to this general confidentiality of mediation. This allows the participants to share information fully and make educated decisions. The mediation process offers a full opportunity to obtain and incorporate legal and other expert information and advice. The parties always retain decision-making power.
Most importantly: The mediator has an equal and balanced responsibility to
assist each mediating party and cannot favor the interests of any one party
over another, nor should the mediator favor a particular result in the mediation.
Your mediator is ethically obligated to acknowledge any substantive bias on
substantive issues in discussion.
The goal of mediation is that since participants have actively resolved your
own conflict, there is greater participant satisfaction, likelihood of compliance,
increased self-esteem, and a greater ability to handle future conflict.
What is the difference between Collaborative Practice and Mediation?
In mediation, an impartial third party (the mediator) facilitates the negotiations
of the disputing parties and tries to help them settle their case. However,
the mediator cannot give either party legal advice, and cannot be an advocate
for either side. If there are lawyers for the parties, they may or may not
be present at the mediation sessions, but if they are not present, the parties
can consult their counsel between mediation sessions. Once an agreement is
reached, a draft of the settlement terms is usually prepared by the mediator
for review and editing by the parties and counsel.
Collaborative Law was designed to allow clients to have their lawyers with them during the negotiation process, while maintaining the same commitment to settlement as the sole agenda. It is the job of the lawyers, who have received training similar to the training that mediators receive in interest-based negotiation, to work with their own clients and one another to assure that the process stays balanced, positive and productive. Once an agreement is reached, it is drafted by the lawyers and reviewed and edited by the both lawyers and the parties, until both parties are satisfied with the document.
Both Collaborative Law and Mediation rely on the voluntary and free exchange of information and a commitment to resolutions that respect the parties' shared goals. If mediation does not result in a settlement, the parties may choose to use their counsel in litigation, if this is consistent with the scope of representation upon which the client and lawyer have agreed. In Collaborative Practice, the lawyers and parties sign an agreement, which aligns everyone’s interests in the direction of resolution, and specifically provides that the collaborative attorneys and any other professional team members will be disqualified from participating in litigation if the collaborative process is terminated without an agreement being reached. Professional advice should be sought when deciding whether mediation or Collaborative Practice is the best process for any individual case.
What is the difference between Collaborative Practice and conventional
divorce?
In conventional divorce, one spouse sues the other for divorce and sets in
motion a series of legal steps. These eventually result in a settlement achieved
with the involvement of the court. Unfortunately, spouses going through a
conventional divorce can come to view each other as adversaries, and their
divorce as a battleground. The ensuing conflicts can take an immense toll
on the emotions of all the participants, especially the children.
Collaborative Practice is a non-adversarial approach to divorce. The spouses—and their lawyers—pledge in writing not to go to court. They negotiate in good faith, and achieve a mutually-agreed upon settlement outside of court. The cooperative nature of Collaborative Practice can greatly ease the emotional strain caused by the breakup of a relationship, and protect the well-being of children.
© 2005 by the Law Offices of DeLeonardo, Smith & Associates, L.L.C.
The information you obtain at this site is not, nor is intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.