Differences between collaborative law (CL) and mediation

Michael Zeytoonian Collaborative Processes, Mediation

MediationMediation and Collaborative Law are two methods that are moving steadily toward the forefront of dispute resolution.  With this heightened interest in early intervention and avoiding litigation, the question that gets increasingly asked is this: What is the difference between Collaborative Law and mediation?  There are several key differences.

First is the timing of their use.  While parties would greatly benefit by using mediation earlier, before they file a lawsuit or early on in the litigation, parties usually turn to mediation too late, after discovery is completed, and often just before the trial.  By then, the parties have already spent lots of time and money and have suffered the collateral damage of litigation.  They are more adversarial then they were at the outset, and often only turning to mediation to avoid the uncertainties of putting their fate in the hands of a jury or judge.  The costs have taken their toll, too much time has passed and their relationships have been damaged or destroyed.

Collaborative Law, on the other hand, is designed as early intervention, to be used instead of and before turning to litigation.  Its focus is only on resolution and settlement by intention.  Because of this, the parties will typically save money, save time, avoid the collateral damage of litigation and still keep the decision-making in their control.

Another difference is that in Collaborative Law, the parties are always represented by counsel and therefore, always have the benefit of legal counsel and having a zealous advocate.  In mediation, often the parties are not represented by lawyers and are negotiating without the benefit of legal counsel or representation.

A third difference, often overlooked, is that of process vs. event.  Collaborative Law is an ongoing process, while mediation is usually a one day event.  There may be a submission made by each party before the mediation begins, to give the mediator some background and context, but typically the expectation is that it will be completed, successfully or not, in one day or less.

Because Collaborative Law is a process, which typically needs 2, 3 or more four-way negotiation sessions before it reaches a resolution, there are opportunities to pause and assess, to prepare for each issue to be taken up in the next four-way meeting, and for debriefing with clients and between the counterpart counsel between four- way sessions.  Corrections can be made, strategies can be changed, agendas can be revised, order of priorities or tasks can be shifted, to be responsive to the developments that occur along the way.  There is more opportunity for refinement and for tailoring to meet the clients’ needs and interests.

Fourth, because the structure of Collaborative Law requires the open and voluntary identifying and exchange of all relevant information, a sufficient amount of discovery is built into the process.  Mediation, on the other hand, has no vehicle for discovery, so to get maximum benefit from the mediation, it has to be very well timed by the lawyers.  Otherwise, the mediation will suffer from either not providing the parties with enough information to make informed decisions as to the settlement, or coming after too much discovery has taken place, which seriously minimizes the benefits of mediation.