Collaborative Divorce or Mediation? What Are the Differences?
We hear from Rachel Slat this month, who expands on the differences between collaborative divorce and mediation; she shares the disadvantages of both and when either practice may be most beneficial.
What are the differences between collaborative divorce and mediation?
Both methods have independent and neutral choreographers in the mediator or coach, but mediation is focused on an outcome and collaboration is focused on a solution. Mediation does not need to have lawyers present, but collaboration must. In mediation, clients and their lawyers are positional, and the lawyers do most of the talking. In a collaboration, clients shape the discussion and do most of the talking. This allows non-legal issues to be addressed and makes collaborative divorce a more holistic process. Clients appreciate the control and sense of respect it gives them and requires them to show their former partner. Mediation is often a truncated version of arguments and facts you would put forward in court. Collaboration explores needs and concerns much more. A mediation can occur when a case has already started, but a collaboration cannot. Both lawyers in a collaboration must be specially trained. Mediation usually has a long lead time with preparation and homework done in advance for a short and sharp intervention by the guiding mediator. Collaboration has the neutral coach or both lawyers as guides when there is no coach. Homework and fact gathering is often done as the meetings unfold.
How long does a collaborative divorce take? Does this differ to mediation?
One is not shorter than the other. Collaborative divorce can take on average, five meetings, but they can be over a period of weeks or many months. It depends on how complex the issues are, how emotionally ready the clients are at times and what homework needs to be done such as real estate valuations and tax calculations. There is often a long lead-in time to gather the facts, historical documents and to prepare a written summary of the case for the mediator. The actual mediation may only take half a day to two days, whereas a collaborative divorce can consist of several two and a half to three hour meetings.
A desire to keep out of court is enough for mediation, but it is not enough for collaboration.
What are the disadvantages of mediation?
Mediation can require a lot of time and money and emotional investment that is often wasted if no agreement is reached. If your client reveals their walk away point in an earnest offer and mediation fails, they have then given their opponent an advantage in the court case by revealing their bottom line.
What are the disadvantages of collaborative practice?
A desire to keep out of court is enough for mediation, but it is not enough for collaboration. Collaboration requires clients to be open to exploring solutions, difficult conversations and a willingness to accommodate their former partner’s interests, needs and concerns and not just voice their own. For divorcing couples, collaboration works best for those who can communicate fairly well and have a reason to continue, such as if they have to co-parent for years to come. The collaborative approach is perfect for negotiating pre-nuptial agreements.
Divorce can become heated whether a case is in court, mediation or collaboration.
What do you find works best for clients when divorce is becoming heated?
Divorce can become heated whether a case is in court, mediation or collaboration. The last two require clients to rise above resentment and recriminations. That is very difficult. I am reminded of the quote: “When you avoid conflict to make peace with other people, you start a war within.” by Cheryl Richardson, Coach. Collaborative divorce is the best method to manage this war, because the coach is usually a therapist, social scientist or psychologist trained to monitor the emotions of the clients. The coach manages the process and manages the lawyers too, when they revert to adversarial and positional or egoic thinking.
Slat Family Lawyers
Level 21, 133 Castlereagh Street, Sydney NSW 2000
Rachel is a lawyer in Sydney Australia specialising in in family law for over 25 years. Her mediation training was at Harvard and it was in Sydney in 2008 when she did her first collaborative practice training, with further training in Washington, San Francisco and Las Vegas through the International Academy of Collaborative Professionals.
Rachel is the President of Collaborative Professionals NSW Inc., the not for profit group of collaborative experts in her state. CPNSW Inc. have over 130 members including lawyers, mediators, financial planners and accountants. Rachel sees that collaboration has been a practical and successful antidote to the expense and delays of an overworked family court system in recent years.