Mediation involves a neutral third party, the mediator, who assists in a negotiation between the parties to help settle a case. The mediator cannot give legal advice and cannot advocate for one party’s interests. If a party is represented, the lawyer may or may not be present at the mediation sessions. The lawyer who assists a party in mediation will normally represent the party in any related court proceedings. If the lawyer is not present then you can consult with him or her between mediation sessions, but normally not during the session. Once there is an agreement, the mediator prepares a draft of the settlement. Both parties and their lawyers are permitted to review the draft.
Collaborative law provides a different approach to reach a settlement. During the collaborative law process, the lawyers for both parties are present during the negotiations. The lawyers, who have training similar to mediators, work with their clients and one another to assure a productive and respectful negotiation. When there is an agreement, a document is drafted by the lawyers and then reviewed by the parties until everyone is satisfied.
Unlike mediation, the collaborative law process cannot be court ordered. Rather, parties and their lawyers will generally agree to follow this process in the early stages of resolving a family law issue. However, if litigation has already begun, it is still possible to take advantage of the collaborative law process. The process can be started by signing a participation agreement. Then the parties will notify the court. The court will suspend the related court proceedings until it receives notice that the dispute was successfully resolved or terminated by other means.
Once a lawyer agrees to represent a party in the collaborative law process, the lawyer is disqualified from representing the party in court proceedings involving the same issues. He or she becomes dedicated to resolving the issues through cooperative negotiations, rather than adversarial means. However, if the collaborative law process does not lead to a settlement, this lawyer will not be permitted to represent the party in future litigation involving the same issues. This is not a concern during mediation.