Working Together: Mediation and collaborative law

The key aim of both mediation and collaborative law services is to help families who have suffered relationship breakdowns, and to seek to resolve them and reach agreements without incurring the costs and emotional anguish of a protracted court case. A family law department includes specialist solicitors who have the skills to understand and sympathise with different scenarios within a typical family unit. However, there are key differences between mediation and collaborative law and how each is used to find a solution in a dispute. 
Family law disputes can involve divorce and separation agreements, but also cohabitation agreements, child custody and residence disputes, grandparents’ rights and prenuptial agreements. Naturally some of these can become complex and stressful and key skills are required on the part of the legal advisors to maintain a focus on making progress and finding solutions.

What are the differences between mediation and collaborative law?

The main difference between mediation and collaborative law is that with mediation, the two parties meet in neutral surroundings and speak with a neutral legal advisor, who seeks to remain independent and impartial throughout. Mediation sometimes only involves one meeting. With collaborative law each party has their own legal representative present who must be a trained collaborative lawyer.

Another major difference is that with mediation there is a possibility that a dispute could end up in court if no resolution is found, even if neither party really wants that. However, with collaborative law, there is a written commitment from the outset to avoid court proceedings and an understanding that if the collaborative law process breaks down and leads to litigation each party would have to change legal representative.  
The benefits of both mediation and collaborative law
With mediation, a neutral mediator will listen to both sides and present a frank assessment of the situation, also detailing the likely outcome should the case go to court. The mediator then seeks to assist the parties with finding a solution which suits both of them and will help draw up a formal agreement. This will often result in lower legal fees and the hope that the matter doesn’t go to court. This also enables privacy to be maintained as all discussions are in private.
In terms of collaborative law, each party has their own choice of collaboratively trained lawyer present at all meetings and the focus is on a collaborative approach, i.e. working together with ongoing legal advice from their solicitors to reach a mutually acceptable solution. Direct communication seeks to avoid conflict and is particularly useful where children are also involved.   

In addition the parties can choose to involve other professionals (usually collaboratively trained) in the meetings including for example, financial advisors, family therapists and accountants. This can cut down on the expense of instructing experts as they would be jointly instructed and involved in joint meetings.
The success rate in resolving disputes through collaborative law is high, and this is attributable to the commitment which the parties make at the outset that court proceedings won’t be pursued and that information will be disclosed voluntarily and with a view to reaching a resolution. 
Collaborative law is more of a process than mediation, and therefore offers the opportunity to pause and reflect between meetings. As solicitors have been present throughout the meetings, an agreement can be made swiftly and the process of formalising agreements made as a result of the process in the form of an agreed court order is straightforward and inexpensive.   

Emma Beddoe is a Brighter Future member and experienced collaboratively-trained family lawyer at Ison Harrison Solicitors. She is branch manager of the firm's Garforth office. Find out more about Emma here or visit the Ison Harrison website
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