What is Collaborative Law – and how does it differ from mediation?

Collaborative Family Law and mediation are both forms of alternative dispute resolution, where parties attempt to resolve their differences without going to court.

Collaborative Family Law is a relatively new process. Each party is represented by their own lawyer, who has gone through special training in Collaborative Law. Both parties and both lawyers sign a Participation Agreement, by which they agree to use their best efforts to resolve the issues without going to court, and also agree that both lawyers must resign from the case if the case does go to court. The Participation Agreement provides both the parties and their lawyers with a strong incentive to resolve the issues out of court.

Typically, there will be a series of four-way meeting between the parties and their lawyers. Instead of simply stating their clients’ positions, Collaborative lawyers will have the parties identify their unique concerns about any issues. For example, instead of just demanding that a child attend ABC Public School, a parent may share that they feel it is important for the child to attend that school because it is convenient and offers a good music program. The other parent may then share that they are concerned about the child switching schools and having to make new friends. The parents would then focus on the question of what school would be best for the child, and would brainstorm about what options would meet everyone’s concerns. While both lawyers help to facilitate the meetings, each party will be getting legal advice from his or her own lawyer, and that lawyer will also work to ensure that the party’s major concerns are addressed.

During mediation, on the other hand, the mediator is a neutral third party who helps the parties to come to an agreement. Even if the mediator is a lawyer, he or she cannot give legal advice. The parties need to go to lawyers to draft the final Separation Agreement and receive independent legal advice.

There are situations where both Collaborative Law and mediation are used. In the Collaborative Law process, the lawyers will often suggest experts who can help resolve specific issues. For example, the parties may agree to jointly hire a financial specialist to deal with the support issues, or may agree to attend mediation to work out a parenting plan. As well, there are mediators who refer the parties to Collaborative lawyers before the mediation starts.  In this way, each party has the benefit of legal advice throughout the process, and any mediated agreement is less likely to fall apart at the end when the parties get independent legal advice.

Toronto barrister and solicitor Cynthia Lauer’s Richmond Hill Ontario practice is dedicated exclusively to family law. She specializes in divorce, separation agreements, Collaborative Family Law, child custody and access, child and spousal support, and restraining orders.