Both Collaborative Divorce and mediation rely on the voluntary exchange of information between the divorcing spouses. However, the mediation process involves only the spouses and a neutral mediator, who facilitates the resolution of issues between the parties. The mediator must be unbiased, and does not give legal advice to or advocate for either party. A mediator typically cannot address an imbalance of power or negotiation skills between the parties; a lack of information or knowledge on the part of a party; or the unreasonableness, stubbornness, of emotionalism of a party. If an impasse is reached, the mediator cannot favor one party or the other in an effort to get the mediation “unstuck”. If the impasse cannot be resolved, the mediator will terminate the mediation.
If the parties reach agreement, the mediator reduces the agreements to writing in a non-binding memorandum of understanding that each party then takes to his/her attorney for review and advice. Once the legal review and advice is obtained, each party must decide whether to engage in further mediation of issues that are not acceptably resolved, or to accept the mediated terms of the memorandum of understanding and have them implemented by their attorneys in court.
Unlike Collaborative Divorce, mediation usually does not make use of an inter-disciplinary professional team, or seek to address or provide help to the parties with respect to the multiple facets of the divorce process. Also unlike Collaborative Divorce, if the mediation fails to resolve all of the issues, the parties can retain their respective attorneys in subsequent litigation of those issues, although they typically cannot use the mediator’s work product or call the mediator as a deponent or witness.
For a simple comparison of collaboration and litigation, go to the http://www.collaborativepractice.com/kit/CP-KnowledgeKit.pdf. The IACP Knowledge Kit can be downloaded and provides extensive information about the collaborative process.