Choosing Whether to Mediate or Collaborate?

Mediation and Collaborative Practice are both alternatives to litigation and having the court decide the legal issues. What are questions one should consider when evaluating these process options for resolution of legal issues in the family, such as divorce, custody, support/cash flow, and asset/debt allocation?

Is there an issue regarding substance abuse?

Is there a significant power imbalance?

Is physical violence an issue in your relationship?

Do you understand your financial situation?

Are there matters that you prefer to be kept private and not shared with the other party?

Is there a history of the other party being deceitful about something important?

Do you have a history of making decisions together or does one of you make decisions unilaterally?

Is it important that you stay on good terms with your spouse (ex-spouse, the other parent)? Is there is a high level of animosity that makes it difficult to converse in the same room?

If you identify problems above, it may make sense to work with a mental health or financial specialist to address these issues before deciding upon a process.

Do you feel more comfortable having an attorney by your side throughout the process? Many parties begin mediation without an attorney and consult with an attorney as needed during the process. Others hire lawyers and/or other professionals to join them in some or all mediation sessions. In Collaborative Practice, each client has an attorney throughout the process.

If clients choose to start with mediation, they are encouraged to use consulting attorneys who have been trained in Collaborative Practice so that if there are issues not resolved in mediation, Collaborative Practice may be a process option for resolving the remaining issues. In the alternative, if clients are using Collaborative Practice and have identified an issue that might be more suited to mediation, the clients can use a mediator to work on that issue. If there is an issue that is likely to be resolved in mediation without the attorneys present, the cost may be significantly less and the issue may be resolved more quickly. However, legal interests should be protected where the clients are urged to confer with their separate legal counsel prior to signing any settlement document.