Sunday, April 1, 2018

Why is Collaborative Law Better than Mediation?

Although I am a Mediator as well as a Collaborative attorney, I almost always recommend using the Collaborative process, rather than Mediation or Litigation, for divorces and other family law issues. That's in spite of a very impressive success rate for Mediated cases. 

Mediation has its place in the world of dispute resolution.  Once Litigation has started, Mediation is ordered by courts in North Texas in most cases before the parties can have a final trial. The reason is that almost every case will settle in mediation.

So, why the preference for Collaborative Law over Mediation or Litigation? Here are some of the reasons that are important.

1.  Collaborative work starts at the beginning of the case. Mediation usually occurs months down the road.  There have been a lot of hearings, documents exchanged, arguments had and money spent by the time the case gets to Mediation. In contrast, we start direct communications (talking!) from the beginning.  We don't spend time and money going to court, doing Discovery (formal exchange of documents) and arguing over lots of side issues.  We identify and focus on the issues that are important to both sides.

2.  Often, Mediation is done with a court date looming in the background.  The implicit threat of court often eliminates some options. In Collaborative, we control our timetable and work as fast or slow as the parties want.  We don't have a threat of compulsion or an adverse Judge's ruling  to force an unpleasant agreement. In Collaborative cases, we have up to two years during which the Court cannot control our schedule.

3.  Mediation usually occurs after a lot of problems continued and often got worse.  Collaborative Law uses a neutral mental health professional, with the close cooperation of both attorneys, to manage emotions and communications. Plus, the structure of the Collaborative Law process is much more rational.  We identify the goals and needs for both parties.  Then we gather information about the parties, their children and their finances.  Next, we generate options for settlement, followed by negotiations to reach agreement so that the needs of both parties are met. Finally, we draw up the paperwork and get it signed by the Judge.  When problems come up, we work together to find solutions because we have all committed to do so.

4.  Collaborative Law is not part of a strategy to financially weaken the other party, a common strategy in Litigation.  Unfortunately, there are sometimes motions and hearings in Litigation that seem to serve little purpose other than to harass the other party and drain their resources. In Collaborative cases, we know that the parties are better served by staying focused on the issues relating to settlement of the problems they have identified. We work on being efficient and regularly review the financial accounts of the parties so everyone knows what's going on.

5.  Collaborative Law eliminates ambush and strategies to "win". Both sides work together to achieve the goals for both parties. There's no solution until both sides are satisfied.  It is not a situation where there's only one "winner"! Both sides have to win, or we keep working.

These are just some of the reasons why Collaborative Law is often a much better process than Mediation or Litigation for handling family issues, including divorce.  For more information relating to your specific circumstances, go talk to a trained, experienced Collaborative attorney.  It will be time well invested.