In mediation, an impartial third party (the mediator) facilitates negotiations with the other disputing party, and tries to help settle the case. However, the mediator cannot give either party legal advice and cannot be an advocate for either side. If a party involved has his or her own lawyer, the attorney may or may not be present at mediation sessions. If the attorneys are not present, a party can consult with the attorney between mediation sessions. Once an agreement is reached, a draft of the settlement terms is usually prepared by the mediator for review, and can be reviewed and edited by the parties along with the attorneys.
Collaborative Law was designed to allow parties to have their own lawyers with them during the negotiation process, while maintaining the same commitment to settlement as the sole agenda. It is the job of the lawyers, who have received training similar to the training that mediators receive in interest-based negotiation, to work with their own clients and one another to assure the process stays balanced, positive and productive. Once an agreement is reached, it is drafted by both lawyers, and reviewed and edited by the parties, until everyone is satisfied with the final document.
Both Collaborative Practice and mediation rely on the voluntary and free exchange of information and a commitment to resolutions that respect the parties’ shared goals. This doesn’t mean the parties have to be in agreement on the issues, only in agreement on their intentions to participate in the process in good faith.
If mediation does not result in a settlement, each party and his/her attorney have the option to move forward together with litigation in court. In Collaborative Practice, the lawyers and parties sign an agreement with the sole focus of negotiations toward a successful out of court resolution of all issues. It specifically states the Collaborative attorney and any other professional team members will be disqualified from participating in litigation if the Collaborative Process is terminated without an agreement being reached. The parties will need to hire new attorneys to proceed with litigation.