Collaborative law or Mediation? | The difference | Hampshire Skip to content

Heather Souter | 29th December 2022

What is collaborative law and how is it different to family mediation?

SHARE

Heather Souter | 29th December 2022

What is collaborative law and how is it different to family mediation?


Collaborative law is an alternative way of resolving family issues. Separating or having a disagreement doesn’t mean you are straight off to court and, as family lawyers, we wouldn’t be doing our jobs if we didn’t explore and consider alternative dispute resolution methods. These alternative dispute resolution methods are more important than ever; the court system was in a pickle pre-lockdown. Throw in a pandemic and it’s chaotic. Delays are unfortunately a permanent feature. And I don’t mean a few weeks; you could be waiting months and months for the court to list a hearing to deal with your case. The emotional turmoil of this is not lost on most family lawyers, particularly if the issue relates to a child or children.

Collaborative Law v Mediation

The good news is there are other ways and this blog explores two of those other ways: collaborative law practice and mediation. Whilst both are voluntary processes, and good ones at that, they are different.

Mediation

Most people have heard of mediation. It’s not counselling and it’s not about repairing a broken-down relationship. Instead it’s about a neutral third person trying to facilitate discussion to negotiate an overall agreement, whether that’s about money or arrangements for the children.

Generally, you and your partner will attend meetings with your chosen mediator, who will be completely impartial and will not advise either of you. You therefore have the option, outside of the mediation process, to each separately take legal advice from your own legal advisors. What is said and advised is between you and your advisor. I generally always think it’s sensible to take advice as the process goes along, particularly if there’s something you’re unsure about.

The aim is to reach an agreement and have that drawn up by the mediator into a document called a ‘memorandum of understanding’. At this stage, it is not a legally binding agreement and the intention is normally again to run this past your own legal advisors. You do not have to agree to anything until you have sought legal advice, assuming that’s what you want to do. Once you and your former partner are completely happy with that agreement, the lawyers will write the agreement into a legal format before sending it to the court for a judge to hopefully consider and approve. Once the judge has done that, there is a legally binding agreement.

How is that different to collaborative law?

Just like mediation, in collaborative law, you attend meetings and the aim is to reach an overall agreement about the issue you are facing. But, rather than attend with a neutral mediator, you and your former partner each go along with your own collaboratively trained family lawyer, i.e. all four of you would be present and you could each ask questions of the lawyers there and then.

Everybody would hear the answer and, in this way, there is a very open and transparent place for discussion. You can also be accompanied by other collaborative professionals, such as family therapists or mortgage advisors. Again, everything is being heard by everyone, at the same time and you can choose who else you may need some independent help from.

That is not to say that you cannot speak to your own legal advisor separately (you can always have a break from the main meeting or discuss matters between meetings) but the idea is very much that you work together, having open and honest discussions about the issues that you want and need to talk about.

These discussions are underpinned by the commitment not to involve the court (other than for legal formalities to make the agreement you reach legally binding). Additionally, if an agreement is not reached and the process breaks down, neither you nor your partner can use your current lawyers in another form of dispute resolution, including going to court. This commitment is made by all involved (yes, the lawyers too) so that you know everybody is truly committed to the process; working together to achieve a positive overall outcome.

Which process is right for me?

This is something your solicitor should discuss with you; there are lots of things to think about, as well as other methods which may be a good fit for you and your family. Visit our collaborative family law and family mediation pages for more information on both alternative dispute resolution methods.

If you are going through a separation and need advice about that, including how best to sort matters out, please contact a member of our Family team.

Stay up to date with our latest industry news

By completing your details and submitting, you are consenting to us sending you relevant legal updates and invitations based on the areas of interest you select. For further details please read our privacy notice.