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What's the difference between the Collaborative Process and Mediation?

In mediation an impartial third party (the mediator) assists the negotiations of both parties and tries to help you settle your case. The mediator cannot give either of you legal advice or be an advocate for either side. This can be a significant drawback if the two parties are not equals, do not have equal access to information, or if there are significant power imbalances. In mediation the parties are permitted to adopt any negotiation position and are not legally required to disclose information. If there are lawyers for each of you, they may or may not be present at the mediation sessions, but if they are not present, then you can consult them between mediation sessions. If an agreement is reached, the mediator prepares a draft of the settlement terms for review and editing by both you and your lawyers.

Collaborative Process requires both of you to have independent lawyers present during the negotiation process but the lawyers join forces to work together to solve the problem. The lawyers, who have special training similar to mediators, work with you and with each other to assure a balanced process that is safe, positive and productive. Information is shared freely and voluntarily. You start by identifying your goals and negotiate to reach an agreement that respects everyone's shared goals. When there is agreement, both lawyers work together to prepare a written agreement. They continue to work together until the agreement has been reviewed, edited as necessary and everyone is satisfied.

Oftentimes mediation is ordered by a judge while litigation is going on in the background. In this situation it can be important to avoid "tipping off the other side" before shortly trial. If mediation doesn't result in a settlement, you may choose to use your counsel in litigation. The Collaborative Process is different. In the Collaborative Process, the lawyers and parties sign an agreement aligning everyone's interests in resolution. Collaborative attorneys and other professional team members are disqualified from further work (participating in litigation) if the Collaborative Process ends without reaching an agreement You can be assured that if the lawyers can't reach an agreement, they will work themselves out of a job trying to get a mutually beneficial agreement. Your choice of mediation or the Collaborative Process should be made with professional advice.
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