What are the differences between mediation and the collaborative process?

February 22nd, 2016

provided by Maritza A. Verdun-Jones /South Point Law Centre
As a family lawyer, collaborative lawyer and mediator, I often get asked what is the difference between these two processes? At first blush, it may appear that there are little differences between these two processes. After all, both are alternative dispute resolution mechanisms which are voluntary and designed to keep participants outside of the litigation process.

Notwithstanding the above, one key difference between the two processes is that both participants do not necessarily need to have lawyers present at any or all mediation sessions. Conversely, in the collaborative process, both participants must have their respective collaborative lawyers present at any and all sessions. What also makes collaborative lawyers unique is that they are also trained interest-based mediators while also retaining the ability to conduct lawyer-like tasks, such as drafting legal documents and providing legal advice to their client or adding legal knowledge to discussions between all of the parties. Mediators are not necessarily lawyers and may further not possess the required knowledge to mediate complex legal or financial issues.

Another difference between the two processes is that if the collaborative law process fails, the process must be terminated with the consequence of both participants being required to retain new lawyers to resolve their outstanding disputes. If participants have lawyers to assist them with mediation, these participants are not required to hire new lawyers if the mediation process breaks down. This unique commitment to the collaborative process may maximize the chances of success because all of the participants are more invested in resolving all outstanding matters in this particular process.

Finally, one key difference between mediation and collaborative law is that the collaborative law process requires the joint efforts of all participants for it to succeed. In mediation, some mediators will conduct “shuttle mediation” where the mediator talks with each participant with his/her lawyer in separate rooms at certain points during the sessions or for the entire sessions. In collaborative files, all participants are together in one room. Indeed, the collaborative process is a joint team effort. The participants, including the participant’s lawyers work together by exchanging ideas and feedback with one another and may further have the benefit of jointly seeking the expertise of a financial or parenting expert. In mediation, the energy is often focused on the mediator to manage the process, which includes what issues will be emphasized or minimized. The participants often do not collaborate together, nor their lawyers if present. The integrated approach applied in the collaborative law process is unique to other alternative dispute resolution mechanisms.

Ultimately, the collaborative process can be highly beneficial for the participants because it encourages transparency and for the participants to be actively involved in the process.

Maritza A. Verdun-Jones
Barrister & Solicitor
South Point Law Centre
Suite 2001; 7495 – 132nd Street
Surrey, B.C. V3W 1J8

Tel: 604 597-2034 | Fax: 604 597-2046