Collaborative law vs Mediation: Which approach is right for you?

The BBS Family Law team offer a range of specialist processes to help you resolve your family law issue. Two of these processes are Mediation and Collaborative Law. 

Both are what is known as forms of ‘alternative dispute resolution’ (ADR) because they are alternatives to the traditional court route. As such, they each can offer you and your family a bespoke process which is cheaper and quicker than court proceedings. Both processes are voluntary and so you each will need to agree to and be committed to them throughout. Of course, not all cases or families will find either option suitable but our specialists can discuss this with you at the first meeting.

What is mediation?

Mediation is a process where you both meet with an impartial mediator who facilitates and assists your discussions in order to empower you both to reach agreements. It is up to you both to make decisions about what is best for your family. Mediation can be used to discuss financial and/or children arrangements. You are each able to take your own independent legal advice from a solicitor outside of the mediation process. 

What is collaborative law? 

Collaborative law is a process where each of you instruct a solicitor who has trained as a collaborative lawyer and roundtable meetings are held with all four of your present. You and your respective solicitors sign up to the process in which if you are not able to reach final agreements, your solicitors must step aside and you have to instruct new ones. This means everyone is more invested in the process to reach an agreement. 

What can I expect in a mediation meeting? 

The first step will be for one or each of you to contact the mediator and have an informal confidential conversation with them. This usually lasts around 15 to 20 minutes and is free of charge. 

After the mediator has spoken with each of you briefly, individual initial confidential assessment meetings will be arranged. This meeting will take about 1 hour and will allow for the mediator to properly understand your situation, fully explain the mediation process and conduct important safeguarding screening to make sure mediation will be safe and suitable for each of you. The mediator will continue screening for any safeguarding issues throughout the mediation so that if mediation becomes unsuitable, it will be discussed with you both and alternative options offered. 

If mediation is suitable and if you both agree to proceed with mediation, joint meetings will be arranged. These can take place either in person or remotely (using Zoom for example). The joint meetings usually take 1 to 1 ½ hours each depending on the issues involved and progress made. The frequency of the meetings is up to you both and what your situation requires.

We are pleased to be able to offer co-mediation where you can have the benefit of two mediators rather than just one. Some people like this option as it can offer a gender balance in the meetings. 

How many meetings you may need is hard to say as it depends on the complexity of your situation and whether you are mediating about children arrangements or finances or both. 

Mediation meetings about children arrangements and finances are held as separate meetings. 

Once you have made proposals or hopefully reached agreement, the mediator will produce documents recording what has been discussed. These can be shown to your solicitors and advice taken. You can then, with your solicitors, formalise any agreements via a consent order which is then approved by the court. 

What can I expect if I want to use the collaborative law process? 

If you and your respective solicitors sign up to the collaborative law process then almost all discussions and negotiations are done in roundtable or ‘four way’ meetings where you are all present. You can involve other professionals to assist you and these make up your collaborative team. Everyone in the team signs up to the collaborative process. As discussions are done in the meetings, there is therefore very little correspondence exchanged and you and your solicitors will work hard in the meetings to narrow the issues and make progress. 

Once you have decided to use the collaborative process, you will first both meet individually with your solicitors to discuss what to expect in the collaborative meetings. Your solicitor will discuss what you both need to do to prepare for the first meeting.

The solicitors will then speak to either other face to face or on the phone to plan the first joint meeting. At the first roundtable meeting, the solicitors will make sure that you both understand you are making a commitment to coming to an agreement without going to court. You will all sign a participation agreement confirming this. You will each be invited to share your own objectives in choosing this process and you will all plan the agenda for the next meeting. 

If there is enough time in the first meeting, it may also be discussed what financial information will be shared and we can agree on who will bring what financial information to the next meeting.

After a few meetings and once you have reached an agreement, the solicitors will draw this up into a formal court document which will be sent to the court for approval by a Judge. It is dealt with on paper and you do not need to attend court. 

Your respective solicitors are there to act in your interests and advise you throughout the meetings. Customer satisfaction surveys carried out since the introduction of collaborative law indicate that collaborative law provides the most satisfying outcomes for clients. 

How are the processes similar? 

• They both require you to each agree to use them and are therefore completely voluntarily and cannot be compelled. 
• For them to be effective, you both must commit to the process and be willing to compromise and cooperate with one another. 
• For either process, you can have specialist third parties attend meetings if you feel they will assist. These can be family therapists, financial advisors, or accountants for example. 
• They are both quicker and cheaper than court proceedings. 
• If dealing with financial matters, a certain level of financial disclosure will be required from each of you. 
• They are private, discreet, and largely confidential processes and generally keep matters out of the public court arena. 
• They allow for you both to feel empowered in your decision making and able to reach bespoke solutions that work for you and your family. 

For more information please get in touch with our Family Law team.