Family Law Mediation vs. Collaborative Family Law

What’s the difference and which is right for you?

At first glance, mediation and collaborative law can seem alike. Both involve staying out of the courts and attempting to reach an agreement that both you and your spouse can live with.

The major differences between the process are who is involved and what the rules are.

Collaborative family law is a form of negotiation where you and your spouse each hire a collaboratively trained family lawyer and you agree to work within rules set out in a written agreement. You will both sign the agreement at the start of the process. The basics of that agreement are that you and your spouse will both commit to open and honest communication. This means disclosing all relevant information, including financial information. You can rest assured that information disclosed in the collaborative process typically cannot be admitted in court as evidence if your negotiation fails. Both lawyers are present during all meetings between you and your spouse to ensure you each understand the legal ramifications of what you decide.

Should negotiations breakdown, the agreement you and your spouse sign in a collaborative family law process provides a mandatory cooling off period before anyone can proceed to court.  Additionally, if you or your spouse wishes to go to court, both of you must retain new lawyers. This can discourage you and your spouse from giving up quickly or threatening litigation if an issue does not resolve easily.

One of the benefits of using the collaborative family law process is that you and your spouse do not just resolve your dispute with the help of lawyers, but you will learn valuable conflict resolution and communication skills. This can also help you practice the type of effective problem-solving for many years after your separation, especially if you have children.

In comparison, mediation does not require a formal written contract that governs how you and your spouse will try to resolve your issues. Like collaborative family law, mediation is voluntary, which means that both of you need to consent to participate in family law mediation. A mediator is a neutral third party and can meet with you and your spouse with or without your lawyers. A mediator can help both spouses communicate, discover common ground, and find solutions.

If you reach an agreement using a mediator, typically the mediator will prepare a document outlining the agreement. A mediator may prepare the formal Separation Agreement or one of the parties’ lawyers will prepare the Agreement. Generally, you and your spouse will sign the document either on your own, or with your respective lawyer, but not with the mediator because the mediator cannot give you legal advice. It is always encouraged the both you and your spouse obtain independent legal advice on the Agreement.

If mediation fails you can proceed to court right away and you will not need a new lawyer. This can be less expensive but may encourage litigious behaviour. In a collaborative setting, knowing that failure will result in greater expense can be motivation to try harder in to succeed.

One of the major differences between collaborative family law and mediation is that in collaborative family law each of you has a collaborative divorce lawyer present during the negotiations whereas, in mediation, the lawyers are not always present when the neutral mediator works with you and your spouse. Having a lawyer present ensures that, while you and your spouse may lead the negotiations, each of you is aware of your legal rights and responsibilities. It can also protect you from feeling pressured into taking a deal that you ultimately will be unhappy with and thus ending up in court in the future.

Which is right for you? This depends on your priorities and your unique situation. If you have questions, please reach out to a collaboratively trained family lawyer. In London, Ontario, you can find a list of qualified lawyers at https://www.collabfamilylaw.com/.

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