How To Choose Between Collaboration And Mediation

How To Choose Between Collaboration And Mediation Many clients come to me for a first consultation knowing that they do not want to subject themselves and their families through the Court process. They want to engage in either Mediation or Collaboration. But they do not understand the differences between the two processes. They ask, “Which is better?” The more appropriate question is “Which is more appropriate for me and my spouse?” That decision cannot be made by a lawyer, or a social worker, or a friend. It has to be made by you and your spouse.

If you understand the differences and similarities between Collaboration and Mediation, you should be able to make an educated decision about which process will be more effective in your situation.

1. The People in the Room

Normally, in Mediation, the people who take part in the actual negotiations (the meetings) are the Mediator and the two clients. In Collaboration, the two Collaborative Lawyers and each of their clients will take part in the meeting.

Only in rare circumstances will there be Lawyer-Assisted Mediation (when the clients attend the Mediation session with their lawyers). In order for Lawyer-Assisted Mediation to work, the lawyers need to buy in to the Mediation process and be willing to comply with the basic rules and expectations of the Mediator. In addition, it is important to remember that if you engage in Lawyer-Assisted Mediation, the responsibility for making decisions and agreements still rests with the clients, not the lawyers.

2. The Role of the Mediator vs. the Role of the Lawyer

In Collaboration, there is no Mediator. The process is governed by the Collaborative Lawyers and the Collaborative Commitment Agreement (this has different names in different jurisdictions). The Collaborative Lawyers each have an attachment to and are on the side of their individual clients. They are not neutral. The Mediator is on no one’s side. The Mediator is truly neutral.

In Mediation, the Mediator cannot give legal advice, even when he/she is a practicing lawyer. When legal advice is needed, clients will be encouraged to get it between Mediation sessions from his/her own lawyer (who usually is not in the Mediation sessions, but can review the Mediation Reports). By contrast, Collaborative Lawyers give legal advice right in the Collaborative meetings. This means that both clients will hear the legal advice that is given, which adds considerable value.

3. The Process is Not Necessarily “guaranteed” in Mediation

The collaborative practice group I belong to in Medicine Hat, Alberta, Canada, endorses a certain standard for how Collaborative meetings will be conducted. This means that all Collaborative lawyers conduct their Collaborative file in the same way. This also means that the “road map” for the meetings and how they will be run is standard and the clients will know, in advance, what to expect. The clients are given this information in a “Client Preparation Meeting” prior to the Collaborative meetings beginning. This means that I can relieve some of my client’s stress about what will happen in the meetings by giving them very specific information about how the meetings will be conducted, what the order of business will be, what the room will look like, how the other lawyer will act, and what to expect.

As Mediation as a profession is largely unregulated and almost anyone can call themselves a Mediator, there is no similar set standard for how a Mediation will be conducted. I often prepare clients for Mediation. If I know the Mediator and have worked with that person before, I can usually give some pretty accurate information about what to expect in the Mediation session and how the process will work. Preparation, as we all know, can be the key to success. (However, if I do not know the Mediator and how he/she conducts their Mediation sessions, I cannot prepare my client in any meaningful way at all).

A story from my practice: I once advised a very intelligent, well meaning, sincere client about what to expect in a Mediation session. A collaborative colleague of mine was doing the Mediation, and I knew how she would conduct it. Without my preparation session, he would have gone into the first Mediation with a well thought out Offer, and may have been upset that all his effort and hard work was being ignored because of the way the Mediator was conducting the session (by focusing first on goals, what is was they were there to answer and gathering information before jumping to solutions). As a result of the advice I gave him, he was able to refocus his energies and prepare in way that was consistent with the way the Mediator conducted the Mediations. When he left my office (the day before the Mediation) he said, “I hope my wife gets this same advice.” A week later, I heard from another colleague of mine, who had now been retained by my client’s wife for legal advice during the Mediation. He reported that she felt like a “duck out of water” in the Mediation because she had not got preparation advice, and had no idea what to expect in the first Mediation. She had gone “blind” into the Mediation and actually felt a little disadvantaged. Fortunately, these people were highly co-operative and trusting. But with different personalities, the fact that the wife did not know what to expect and the husband did, might have resulted in enough imbalance to end the Mediation.

As a Mediator, I send an information package to my clients prior to the first Mediation session. This explains the process quite clearly, and if the client needs help to understand it, he/she could take it to any lawyer (even one who does not know me or have previous knowledge about how I do Mediations) who could give the client a thorough preparation based on the materials in the package.

I think it is safe to conclude, however, that in Collaboration you can be guaranteed of being prepared for the session and having information, in advance, about how it is going to work. You cannot always be assured of that in Mediation and unless you choose the Mediator carefully, there may be no way to prepare and no certainty about the process.

4. There is the chance for more “strategizing” and less transparency in Mediation than in Collaboration.

After the preparation is done in Collaboration, most (if not all) of the work is done in the 4 way meetings, with the two clients and the two Collaborative Lawyers present. There should be no private meetings between one of the clients and his/her lawyer unless there are unusual circumstances. If those unusual circumstances exist, the client and lawyer who meet privately have to get the consent of the other client and lawyer, and agree to disclose why they are meeting. All discussions in the 4-way meeting, including when the lawyers give legal advice to his/her client, are open, transparent discussions that all 4 participants take part in.

In Mediation, neither party has a private discussion with the Mediator. Both clients are present for all discussions in the Mediation session. However, each client can have private discussions with his/her lawyer whenever he/she wants to, for as long as he/she wants to and as often as she/he wants to. These discussions are not open to the other client. As a result, there is more opportunity in Mediation for the client to have “strategy sessions” with his/her lawyer which may undermine the Mediation process. In other words, if one of the clients has a lawyer who does not totally buy in to the Mediation process, that lawyer may be giving the client ideas and suggestions that may have a negative impact on the process. By the same token the involvement of the lawyer may be a positive one, and may help the process, but the key is that the other person does not know what is being discussed, therefore, the process does not have the same transparency as Collaboration does.

Whether this is a negative or positive aspect depends entirely on the situation, the goals of the clients and the people involved.

5. Similarities of Collaboration and Mediation

Ø Collaboration and Mediation are both “interest based” negotiation models. This means that the basis for making the decisions and finding solutions is what is important to the clients and what each of the clients individual goals are.

Ø Collaboration and Mediation sessions are usually conducted in 2 to 3 hour time blocks, with anywhere from 1 to 4 weeks between meetings. (Of course there are exceptions to every rule).

Ø Usually, a Report or “minutes” of the meeting will be circulated to all involved within a few days of the meeting. (Again, this is one case where the standards of Collaboration are clear, but some Mediators I know only do one report at the end of all sessions).

Ø In both processes, clients agree to stay out of the Court system. You cannot be in the

Court system at the same time you are participating in Collaboration or Mediation.

SEVEN QUESTIONS TO ASK YOURSELF:

1. Do I want my lawyer in the negotiation sessions?

If yes, Collaboration or lawyer-assisted Mediation. If no, Mediation.

2. Do I want to hear the legal advice my spouse is being given by his/her lawyer?

If yes, Collaboration. If no, Mediation.

3. Do I want to ensure I am educated about the process before I go to the first meeting?

If yes, Collaboration or Mediation where the Mediator provides information in advance about how she/he will conduct the Mediation.

If no, Mediation.

4. Do I feel that there is a power imbalance between myself and my spouse that a Mediator

will not be able to assist with?

If yes, Collaboration. If no, Collaboration or Mediation.

5. Do I feel that the Mediator my spouse and I have chosen is truly neutral?

If yes, Mediation. If no, get another Mediator or do Collaboration.

6. Do I want to be able to plan or strategize with my lawyer in sessions that my spouse does not take part in?

If yes, Mediation. If no, Collaboration.

7. Is it important to me that all negotiations and discussions are transparent – (including mine with my lawyer and my spouse’s with his/her lawyer)?

If yes, Collaboration. If no, Mediation.

Marilyn Herrmann is a Mediator and Collaborative Lawyer who is a partner at Niblock and Company LLP in Medicine Hat, Alberta. She has a self-declared bias against family law matters being resolved in the Court system, and believes that conflict does irreparable harm to families. Marilyn is interested in any method that can help divorcing parents re-structure their families in a respectful, amicable way. Feel free to share your comments and ideas with Marilyn at mherrmann@niblock.ca