The Joy of An Ex - Mediation or Collaborative Practice - Which Is for You?

Copyright (c) 2012 Jackie Ramler

Mediation and Collaborative Practice are processes available to family law clients who wish to resolve their issues, with professional assistance, out of court. How do you decide which process is for you? It is important to understand how mediation and collaborative practice are similar, how they are different and the benefits and limitations of each.

Mediation and collaborative practice share similar values and beliefs about conflict and the best way to resolve it. Both processes share a commitment to providing the support and environment necessary to empower clients to communicate effectively, to obtain and understand the information relevant to the issues, and to negotiate a settlement acceptable to both parties.

Both processes assume that most people are capable of resolving issues on their own, with appropriate guidance, support and information, and don't need a judge to decide their lives for them. Both value a customized settlement that suits the needs of each particular couple or family, rather than the more limited, standardized options available through the courts. Both recognize that agreements the parties create themselves are more durable than agreements imposed on one or both.

Both processes value maintaining or rebuilding a working relationship between the parties, while understanding the damage that is caused to children who are placed in the middle of ongoing parental conflict.

Mediators and collaborative practitioners model and teach clients strategies for effective listening, non-defensive questioning and speaking without judgment or blame. Both attempt to manage emotional dynamics by actively listening to and acknowledging each client, while encouraging the use of effective communication techniques and by offering breaks and caucuses when needed. Both move the process forward with the use of agendas for each meeting, including homework items and to do lists. Collaborative lawyers and most mediators provide participants with progress notes summarizing the work done at each meeting. Both processes are attractive to people who seek an efficient, cost-effective way to work out their agreement and resolve the future issues concerning parenting arrangements and support that inevitably arise.

There are also significant differences between mediation and collaborative practice. A mediator is neutral and must maintain a balanced approach, while helping the clients make their own decisions. A mediator may make suggestions, but may not advocate for either party. A mediator may work for the welfare of the children by helping clients to distinguish their own needs from those of their children. A mediator may provide general legal information to both parties but cannot provide a legal opinion as to the likely outcome should the matter proceed to court. Mediation is suited to clients who feel that they can advocate for their own interests, understand the issues sufficiently well, and are prepared to sit face-to-face with a neutral third party to conduct their negotiations. A mediator will work to create an atmosphere of safety and to ensure that both client voices are heard in the process. Mediation works best with parties with a reasonable level of trust between them, a manageable level of conflict and emotion, and some history of or capacity to work together to make decisions.

Collaborative lawyers, on the other hand, are not neutral but are rather advocates for their clients' interests. While collaborative lawyers work together as a team to help the parties find mutually a satisfactory settlement, each collaborative lawyer has a primary duty to his or her client. Collaborative lawyers provide their clients with whatever support is needed to ensure that the client has a safe, effective negotiation environment. Collaborative lawyers advocate for an agreement that will satisfy the client's interests and goals, while providing their clients with a reality check to help them take reasoned and reasonable approaches to the issues. Collaborative lawyers ensure their clients understand the issues and information, have the time and support they need to manage their emotions and make good choices, help the clients consider and articulate their goals and interests and hear those of their spouse.

Collaborative Practice is appropriate for a wide range of clients who wish to resolve their issues out of court, but want legal advice and negotiation coaching every step of the way. Collaborative practice attracts couples with goodwill toward each other who seek an efficient, respectful process and who want legal wisdom throughout their negotiations to ensure they make smart choices. They may also wish the assistance of a family professional to provide education regarding their children's needs and to help them craft a parenting agreement.


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