“Collaboration vs mediation – what’s the difference?” is a common question in Florida divorce and custody cases. The collaborative process offers a middle ground between mediation and full adversarial litigation. Collaboration also differs from mediation in several important respects.
In mediation, the parties meet with one neutral mediator and advocate their positions. They may or may not be represented by a lawyer.
The mediator cannot give any party advice or assist either of the parties in advocating their position.
Each party explains their “position” to the mediator.
Evaluation of offers made in mediation are evaluated on your expected “best day/worst day” at court, based on entitlements provided by law.
No other persons are permitted in the mediation sessions unless both parties agree.
The mediator sets the rules of the process.
The threat of litigation is ever-present in mediation.
If you have a lawyer at mediation, the lawyer can continue on the case.
In the collaborative divorce process, each party is fully and individually represented throughout the process by a collaborative lawyer.
The parties decide how the process will operate in their Participation Agreement.
Both parties, as well as other team members, generate all options possible before evaluating any of them, so everything can be explored.
Each party is encouraged to explore not only what they want, but why they want it. This approach allows more options to be generated than in traditional mediation.
Evaluation is based on underlying principles and goals decided as part of developing the collaboration team and the effect on all family members, not just the individual spouse.
Parties who might not be skilled in negotiating or in understanding financial or legal nuances can feel secure that their lawyer is protecting their interests and that they will get the information they need to effectively participate in the collaborative process.
In addition, the parties and the attorneys in the collaborative process are assisted in the negotiation sessions by a trained communication expert, who acts as a neutral professional to advise all participants in how to more effectively communicate and define their interests and options. This “interest-based” negotiation helps you reach a deep and lasting resolution of the marital conflicts that have developed over the years.
The vast majority of collaborative divorce cases reach agreement, but if no agreement is reached the attorneys and professionals cannot be used for litigation. There’s a good reason for this: it encourages true and deep discussion of the conflict and the options available as well as the motivations of each spouse. The very same thing that makes the collaborative process so healing is exactly why the professionals must exit at litigation: they know the parties deeply and they know what motivates each of them. Knowing the other side so deeply would be a huge advantage in litigation.
Collaboration vs. Mediation: What’s Right for You?
The choice of using collaboration vs mediation is one that only you can decide for yourself. Neither process is right for everybody in all situations. If you want to continue a strong co-parenting relationship after the divorce or have complex financial issues, collaborative process is likely a better choice for you. On the other hand, if your finances are simple and you are completely on the same page with respect to parenting issues, the cost savings of mediation make it particularly appealing.
On the other hand, if you are interested in truly resolving the conflict and learning how to better express yourself and your needs now and in the future, collaboration wins hands-down. The introspection involved in the collaborative process helps you move forward in your life with better relationship and negotiation skills.