In mediation, an impartial third party, who acts as the mediator, assists the parties with their negotiations and tries to help them settle their dispute. The mediator does not have to be an attorney and cannot act as an advocate for either side or give either party legal advice. In other words, if an agreement contains terms that are grossly unfair to one party, the mediator may not recognize them and, even if he or she does, is not permitted to give legal advice about the issue or any other issue. If both parties have attorneys who are not present at the mediation, they are free to contact them for advice in between mediation sessions. However, when the attorneys are not present during mediation, they are essentially unable to give their clients legal advice throughout the ongoing negotiations. Once an agreement has been reached between the parties, the mediator will typically prepare a Memorandum of Understanding (different than a settlement agreement) for review and comment by the parties and their attorneys before it is signed. There is no mechanism requiring the formal exchange of discovery in the mediation process.
Alternatively, in a collaborative divorce, both parties’ attorneys are present during the negotiation process, which takes place during settlement conferences. There is no mediator present, but lawyers who practice Collaborative Law have usually received training similar to a mediator and can offer the parties similar benefits, in addition to legal advice. In collaborative divorces, the attorneys work with their clients and the other professionals where necessary to encourage communication and ensure a balanced outcome that is acceptable to both sides. When an agreement is reached, the lawyers prepare a draft of the document, which the parties review prior to signature.
The hallmark of the collaborative process is the participation agreement, a contract in which both parties agree that they will not go to court but will attempt to come to a resolution via the collaborative method. In the event the collaborative process does break down, both attorneys are prohibited from further representation of their specific clients and may not represent them in the litigation process. In both mediation and collaborative divorce, there is the potential that the parties may fail to come to an agreement; however, more often than not, a couple who commits to this type of negotiation experience success with these methods, feeling more confident in their agreement, happier in the results and having spent less in legal fees.