Collaborative Law is very different from Mediation because in Mediation
there is normally one mediator who helps the disputing parties to talk
about their case. A Mediator cannot give either party
legal advice and cannot help either side
advocate its position. If one side or the other becomes unreasonable or
stubborn, or lacks negotiating skill, or is emotionally distraught, the
Mediation can become unbalanced and if the Mediator tries to deal with the
problem the Mediator may be seen by one side or the other as biased whether
or not that is so. If the Mediator does not find a way to deal with the
problem the Mediation can break down or one party might agree to an unfair
agreement. If either party has instructed a solicitor then they are
unlikely to be present at the Mediation session. The parties would
therefore have to have separate meetings with their lawyers. This can
undermine trust and can mean that was has been agreed in Mediation might be
reversed once the parties meet with their lawyers.
Collaborative Law was designed to deal with these problems while
maintaining a commitment to settlement. Each side has legal advice and
advocacy built in to the process. Any legal advice is given within the
roundtable meetings if it is required at all and all parties can explore
the feasibility of the legal position. More often than not, parties are
not interested in what the legal position is but rather how can we sort out
these problems with the resources we have?
Even if one side or
the other lacks negotiating skill or financial understanding, or is
emotionally upset or angry, the playing field is levelled by the direct
participation of the specially trained
collaborative solicitors.
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