Both Collaborative Practice and mediation rely on the voluntary and free exchange of information and a commitment to resolutions that respect the parties' shared goals.
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 lawyers 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, or a summary of the settlement terms may be prepared and the lawyers for the parties prepare the agreement.
Collaborative Practice was designed to allow clients to have their lawyers with them during the entire information gathering and negotiation phases of the process. The lawyers share the same commitment to settlement as the sole agenda. It is the job of the Collaborative lawyers, who have received training similar to the training that mediators receive in interest-based negotiation, to work with the clients and with one another to insure that the process stays balanced, positive and productive. Once an agreement is reached, it is drafted by the lawyers and reviewed and edited by both the lawyers and the parties, until both parties are satisfied with the document.
In mediation, if a settlement is not reached, the parties may choose to use their lawyers in litigation, if this is consistent with the scope of representation upon which the client and the lawyer have agreed. The lawyers may or may not be trained mediators and they may or may not encourage the parties to reach a shared resolution. In fact, the lawyers may even discourage the client from freely and voluntarily sharing information that may be important to the resolution of the parties' issues. In Collaborative Practice, the lawyers and parties sign an agreement that specifically provides that the Collaborative lawyers and any other professional team members will be disqualified from participating in litigation if the Collaborative Process is terminated without an agreement being reached. This reaffirms the commitment of the lawyers and the parties to the shared goal of reaching a resolution that works for both parties.
Collaborative Practice also provides for the use of financial specialists, child specialists and other professionals who have been specifically trained in Collaborative Practice to assist the parties to gather information and formulate options for resolving their unique situations. Mediators may request that the parties gather information and advice from outside sources, but it is unlikely that those outside sources will participate in the process of formulating a shared resolution for the parties.
Professional advice should be sought when deciding whether mediation or Collaborative Practice is the best process for any individual case.