Collaboration and Mediation – what is the difference?Joanna Craig
There has been a lot of publicity about mediation in the context of divorce, but also a lot of misunderstanding. If you are thinking about divorce proceedings you do not have to go to mediation first, it is not compulsory. Changes were introduced by the Government to encourage couples to consider alternatives to going to court and these make mediation part of the process only if you are thinking about going to court to argue about finances (the division of the house, your pensions, etc) or you are arguing about the children. Obviously it is a good idea to look at other ways of resolving difficulties rather than going straight to the courts as this tends to be not only expensive, but a process that polarises people and they end up in a worse situation emotionally as well as financially. Also of course the courts will impose a solution that is not one that the parties have arrived at themselves.
Far better to consider other ways of resolving difficulties.
The Government is though, now considering making a visit to a mediator a requisite part of any application to court concerning children or finances.
Within the context of divorce, collaboration has a very specific meaning, whereas mediation is a general term to cover ways of exploring common ground and possible compromises. Mediation is a means of resolving disputes which arise before, during or after separation or divorce and can also help you to agree issues in relation to your children. It provides a safe environment, helping to reduce hostility and improve the chance of long term positive communication. You can explore different options and the Mediator will assist you in checking how practical your proposals really are and guiding you to acceptable and workable solutions. Above all the outcome you reach is entirely under your control, rather than being imposed by the Courts. It is therefore far less costly than Court proceedings both financially and emotionally.
With mediation there is generally one person acting as a mediator for both the parties, but of course it can be that the parties don’t want to sit in the same room as each other, maybe communication has broken down to such an extent that it is almost impossible, or one party feels intimidated by the other. If that is the case but you want to avoid going to court – it may be that using the collaborative approach would be better.
With the collaborative process with a divorce, the parties do sit round the table, but they are always accompanied by their lawyer. The difference is that, although they are instructing their lawyer to represent them and their views, both lawyers in a truly collaborative process are trying to seek a solution which as far as possible suits both parties. They are not trying to achieve the best for their client at the expense of the other party. So the typical adversarial approach that you get in court is dispensed with and hopefully replaced by something better. Having your lawyer present can be reassuring, but obviously more expensive than mediation when there is only one mediator rather than two lawyers.
At the end of the day there are a limited number of options available to parties who are divorcing, is it not sensible to go through these options in a calm and reasoned way, everyone sitting round the table together making full disclosure of all the assets and trying to reach a rational conclusion?
Collaboration or mediation makes sense – emotionally, financially and practically.
For more information or to discuss further please contact Nicky Gough on 07711 527968 or email firstname.lastname@example.org.