As your collaborative lawyer, I will develop a close professional relationship with you. I will be your legal and strategic advisor; I will know your most important goals and concerns and will make sure they are heard; I will speak for you in meetings to the extent that you do not wish to do so yourself; I will work closely and constructively with my collaborative legal counterpart (note: not adversary) and other professionals that may be involved to make sure that your needs and interests have a strong voice.
I draw on all the legal and therapeutic skills that I do as a mediator, but my role is different: I am your ally.
ABOUT
About 25 years ago a group of mediators realized that not all clients could successfully resolve their issues in mediation, and the only alternative at the time was to send them into the adversarial legal system.
Usually the mediation ended because there was a power imbalance, or a perception of a power imbalance, between the two participants; or one or both people didn’t feel that they could speak up in mediation and advocate for themselves; or perhaps one or both people felt overwhelmed and disorganized by the financial discussions.
Put simply, they needed more support than what the neutral mediator could provide, but didn’t want to go to court.
Collaborative law filled this void.
THE PROCESS
The collaborative law process is driven by the four-way meeting, where there is no mediator but rather two clients and their respective collaborative lawyers. Sometimes other professionals such as child specialists or financial advisors will also participate in these meetings.
There are also one-on-one meetings between each lawyer and his or her client, and meetings between the lawyers. As in mediation, issues are discussed in a low-conflict, supportive, problem-solving environment.
Adversarial posturing, threats of litigation, and litigation itself are all off the table, so the clients and attorneys can spend all their time and energy focusing on the real issues. Both collaborative lawyers must withdraw if a resolution isn’t possible. This presents a risk, as the clients would need to start over with new litigating attorneys; but more importantly, the no-litigation pledge is the glue that keeps everyone highly invested in reaching a civilized out-of-court agreement that reflects the needs and interests of all family members.
Collaborative Law and Mediation
Similarities and Differences
+ Process
Mediation and Collaborative Law
Non-adversarial divorce
Clients retain control over timing, pace, decisions
+ Attorney
Mediation
Clients may consult with attorneys during process; mediator provides legal information but not legal advice
Collaborative Law
Active role (as advocate, advisor, problem-solver), but always constructive and non-adversarial with other spouse and attorney
+ Advocacy
Mediation
Mediator neutrally advocates for both clients and for the process
Collaborative Law
Attorney articulates concerns of client
+Open Disclosure and Good-Faith Discussion
Mediation
All financial information voluntarily disclosed; all discussions conducted in good-faith with goal of fair and durable agreement
Collaborative Law
All financial information voluntarily disclosed; all discussions conducted in good-faith with goal of fair and durable agreement
+ Participants in Discussion
Mediation
Typically all conversations and correspondence are three-way; occasional two-way (always evenly balanced) caucusing may be useful
Collaborative Law
Combination of two-way(attorney-client and attorney-attorney) and four-way discussions
+ Cost
Mediation
Often less expensive than both collaborative and adversarial divorce. Hourly fee, no retainer. Costs involve mediation sessions, drafting fees; consulting/review attorneys; other neutral experts
Collaborative Law
Often less expensive than adversarial divorce. Hourly fee; retainer. Costs involve two- and four-way meetings; attorney drafting fees; other neutral experts (financial advisors, accountants, coaches)
+ Which process?
Mediation
May be best choice for:
People who can speak for themselves and who want to listen to their spouse's point of view.
People who can imagine sitting in three-way meetings without attorneys present and problem-solving with their spouse and the mediator.
People who can, and prefer to, make decisions for themselves regarding their divorce (with input from mediator, consulting attorneys and other neutral experts.)
May be a poor choice for:
People who believe that there will be dishonesty or deceit in the mediation process.
People who have concerns about significant power imbalances or physical violence that would make it hard to talk freely in mediation.
Collaborative Law
May be best choice for:
People who prefer a more active attorney role, but who do not want to incur financial and psychological cost of litigation.
People who can imagine sitting in four-way meetings with spouses and attorneys and problem-solving together.
People who can, and prefer to, make decisions for themselves regarding their divorce (with input from attorneys and other neutral experts.)
May be a poor choice for:
People who believe that there will be dishonesty or deceit in the collaborative law process.
People who might want the protection of a family court (domestic violence or other situation.)