Collaborative law or mediation?

Our members are often asked this question by people who are interested in exploring alternatives to court, so we thought it would be useful to share a few key differences between the two processes.

In mediation:

A mediator is neutral. Although mediators can provide information of a general nature, they are prohibited from giving either you or your former partner legal advice, and they can't help you advocate your position.

The mediator is there to facilitate discussions between you and your former partner, and has a duty to advise you each to take separate legal advice outside the mediation sessions.

Whilst a mediator will record any agreement reached between you any settlement discussed during mediation is only binding once each of you have had the opportunity to take separate legal advice and have transferred the agreement into a consent order or contract. The mediator cannot prepare the court documents for you, nor finalise the process.

In collaborative law:

You each appoint your own lawyer, and they attend all of the 'four way' meetings with you. They are by your side throughout the process, advising you and advocating on your behalf.

Provided agreement is reached, your collaborative lawyer can act for you in the divorce, and prepare the contract or consent order. Lawyers are rarely present during mediation sessions, so their advice must be given between sessions or at the end of the process.

You each have your own lawyer throughout the collaborative process advising you and advocating on your behalf. If you and your partner lack negotiation skills, financial understanding or feel vulnerable when in the sole presence of the other party, collaborative family law may be more appropriate for you than mediation.

People who feel they lack financial skills, or the ability to negotiate with their former partner, or who feel vulnerable in the presence of their ex without support on hand often choose collaborative law over mediation, but mediators may still have a role in the collaborative process to help you reach agreement on a specific issue. In that situation, your collaborative lawyer can help you find a suitable mediator.
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