What is the difference between collaborative law and mediation?

Year Published: 2015

 

  • In mediation the mediator is prohibited from giving either of you legal advice and cannot assist you in advocating your position. A mediator is neutral;
  • The mediator is there to facilitate you and your partner and has a duty to advise you each to take separate legal advice, either during the process or after;
  • Any settlement discussed during mediation is only binding once each of you have had the opportunity of taking separate legal advice and have transferred the agreement into a separate consent order of the court. The mediator cannot prepare the court documents for you nor finalise the process;
  • Provided agreement is reached your collaborative lawyer can act for you in the divorce and prepare the court papers to obtain the consent order;
  • Lawyers are rarely present during the mediation sessions and their advice may be given too late to assist in the process;
  • In collaborative family law, you each have your own lawyer throughout the process advising you and advocating on your behalf. If you and your partner lack negotiation skills or financial understanding or feel vulnerable when in the sole presence of the other party, collaborative family law could be preferable to mediation;
  • Mediators may still have a role in the collaborative process if you and your partner wish to consult a mediator regarding an issue. Collaborative lawyers can assist you in finding a suitable mediator.

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