An Overview on Mediation and Collaborative Law
What these ADR methods involve and what happens when an agreement can't be reachedBy Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on March 14, 2023
Use these links to jump to different sections:
- Common Questions for an Attorney
- Finding the Right Attorney for Your Needs
- Why Should I Talk to a Lawyer?
Are you involved in a legal dispute and want to avoid the time and expense of going to court? Are you divorcing but trying to maintain a good relationship with your spouse for the benefit of your children? No matter the reason for wanting to resolve your case outside of court, mediation and collaborative law can be useful alternatives to litigation.
The following overview will give you a look at mediation and collaborative law, including the basic processes, the parties involved, and what happens if you cannot reach an agreement. You can use this overview to evaluate whether these dispute resolution processes would be beneficial in your case, as well as help you feel more prepared when you meet with a lawyer for the first time.
If you are engaged in a legal dispute but don’t want to take your case to court, you may want to consider alternative dispute resolution (ADR). ADR is an umbrella term for methods of resolving legal disputes without litigation.
ADR can be used in most disputes and has the potential to result in much more favorable outcomes for the parties involved since they have the power to shape the agreements. ADR may also cost less than the litigation process, and it is generally quicker than traditional litigation.
There are four main types of ADR: negotiation, mediation, arbitration, and collaborative law. This overview covers mediation and collaborative law.
In the mediation process, a neutral third party called a mediator works with the parties to facilitate a settlement. The parties may have their own attorneys, though they are generally not required to. Mediation can be used for many types of disputes. For example, divorce mediation can address several family law-related issues, including spousal support or alimony, child support, child custody and co-parenting arrangements, and marital property division.
The mediator will meet with all parties, who will make opening statements. The mediator then has the option to separate the parties into different rooms in order to speak with them individually and communicate each party’s position to the other parties. This is different from arbitration and judicial proceedings, wherein the judge or professional arbiter is not allowed to speak with one party outside the presence of the other parties.
Once the mediator has spoken with the parties and gathered evidence, they will then facilitate negotiation and resolution. An agreement reached through mediation is not binding, which means the parties are not required to follow through with the agreement. However, it will be to your benefit to come to an agreement you are willing to support so that you can avoid incurring further legal costs and the potential of litigation. If you cannot reach an agreement, you and your lawyer may determine that litigation should be your next step.
Whereas mediation is used in many types of disputes, collaborative law is typically used in divorce and family law cases. Collaborative law involves the parties and their lawyers. Unlike mediation, collaborative law requires the parties to be represented by lawyers. Usually, these lawyers are specially trained to practice collaborative law.
The goal of collaborative law is to reach a win-win solution to the conflict. In fact, parties are generally required to enter into an agreement that stipulates they will make every effort to come to an agreement that works for both parties. This process is different from other ADR approaches because the parties are not permitted to take their case to court. If parties are unable to reach an agreement and decide to proceed to litigation, or if one party threatens to go to court, the process ends, and they will be required to hire different lawyers and begin their case again from the beginning.
Collaborative law is commonly used in divorce proceedings, especially when the couple has children. The parties can bring in collaborative professionals and child specialists in an effort to come to the best agreement. The difference between this process and a traditional divorce process is that instead of trying to win custody or prove you are a better parent than the other party, you are trying to find a solution that involves everyone and doesn’t necessarily favor one party over the other.
Common Questions for an Attorney
Avoiding divorce litigation through ADR can bring many benefits to the parties, including less time, money, and stress in the divorce process. Whether you are interested in pursuing a mediated divorce or a collaborative agreement, speak with an attorney sooner rather than later. As noted above, you must have a collaborative lawyer for collaborative law; it’s also highly advsable if you’re considering mediation. Below are some common questions you might want to consider when meeting with a divorce attorney for the first time.
- What are your attorney’s fees and billing options?
- What is your experience as a collaborative attorney?
- What is involved in the collaborative divorce process compared with the mediated divorce process?
- Is collaborative law or mediation right for my case?
- What is the difference between collaborative law and mediation?
Finding the Right Attorney for Your Needs
It is important to approach the right type of attorney—someone who can help you through your entire case. To do so, you can visit the Super Lawyers directory, and use the search box to find a lawyer based on your legal issue or location.
To help you get started, you may want to consider looking for a lawyer with experience using mediation or collaborative law.
Why Should I Talk to a Lawyer?
Legal disputes often involve sensitive issues and heightened emotions; however, for mediation or collaborative law to work, parties need to be able to put some of that aside and work together. This is where a lawyer is helpful—as they can work as your intermediary and communicate your position in an objective way, maintaining a cooperative environment. Your lawyer will also help you gather the documents you need for your case, and they can assist you in choosing a mediator.
If you reach an agreement, your lawyer can help you get the agreement in writing and filed with the appropriate offices, giving you one less thing to worry about. If you do not reach an agreement, your lawyer can advise you about your next steps, including whether you should take the case to a court—and whether you will need to hire a new lawyer for the next phase.
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