Mediation and Collaborative Law

By John Devendorf, Esq. | Reviewed by Andrew Leonatti

Last updated August 1, 2023

Going to court to resolve a dispute is stressful. The U.S. legal system is adversarial. But these disputes often involve a resolution that you can reach without a lawsuit. There are alternatives to litigation. Mediation and collaborative law are ways to resolve disputes without leaving it up to the court to decide.

Mediation and collaboration are great for certain legal issues but not all. Talk to a collaborative law attorney about your legal options if you want to know more about the collaborative law process.

What Are Alternatives to Litigation?

Litigation is the process of taking a case to court. It can refer to the nature of legal disputes where one party is fighting against the other. Lawyers advocate for their clients. They use their legal experience to get the best outcome for their client, even if it is bad for the other person.

Not all legal cases need to put one person against the other. For example, in a dispute between family members, a nasty lawsuit can leave lasting bitterness and loved ones who never talk to each other again. It may be possible to find alternatives to litigation to stay on good terms and save time and money.

There are several reasons parties may prefer alternative dispute resolution (ADR) methods. They can be less expensive and faster than going through court. Court proceedings are generally part of the public record, but resolutions outside the courts can allow for more privacy and confidentiality. Alternatives can also avoid the stress and tension that come with litigation.

Types of ADR include:

Mediation
Arbitration
Settlement negotiations
Neutral evaluation
Collaboration

Mediation

Mediation is a way for parties to come up with their own solution to the problem. The parties work with a neutral third-party mediator who does not represent either side. The mediator works with each side, alone and together, to find an acceptable solution. After finding a way to settle the issues, the mediator can write up a legally binding agreement that both parties sign.

Collaboration

Collaborative law is a relatively new approach to legal disputes. When there is a dispute, the parties find collaborative attorneys instead of each party hiring their own attorney. From the beginning, everyone is on the same page with wanting to resolve the dispute in a way that works for everyone. You and the other party generally sign a participation agreement to commit to the process to come up with an agreement you both support.

Mediation and Collaborative Law in Family Law

Mediation and collaboration are common in family law disputes like divorce, including negotiating property division, spousal maintenance (alimony), and child support. Family disputes are unique because the people involved continue to have a relationship after the issues are resolved.

For example, in a business contract dispute, the companies involved never have to do business with each other again after litigation. But parents must stay in contact while raising their children after a child custody dispute. This anger and tension can be bad for everyone, especially the children.

Many family courts require going through the mediation process before the court decides the issue. Parents get together with a mediator and start the mediation session with where they can agree and where they disagree. The mediator will work with both parents to address the sticking points and help them come up with agreeable solutions.

If they can agree to a parenting plan, they will sign the agreement. If one of the parents violates the terms later, the court can enforce the parenting agreement.

Collaborative Family Law

The collaborative divorce process is becoming more popular. In some relationships, the divorcing couples decide to move on with no real animosity toward the other. A contested divorce can make the divorce more complicated, cost more money, and take more time. If the divorcing partners have disagreements, a collaborative divorce lawyer can help resolve those issues without divorce litigation.

Collaborative law can also involve input from other collaborative professionals, including child specialists, financial professionals, and mental health professionals. Some of the benefits of collaborative law include:

Holistic approach
Maintain privacy and confidentiality
Parties have control in the process
Allows for creative solutions
Maintains positive relationships with the children

Mediation and Collaboration in Other Legal Practices

Mediation and collaboration are also available in other practice areas. Mediation is one of the most common types of ADR. Mediation is one of the most popular ways to resolve disputes more quickly and effectively and is less costly than going through court. Mediation is common in disputes involving:

Landlords and tenants
Employers and employees
Neighbors
Family members
Small amounts of money
Collections

Collaborative law is most commonly used in family law. But it can also be helpful in estate planning and elder law. Collaborative law is most appropriate where both parties are committed to maintaining a positive relationship going forward.

When Are Mediation or Collaboration Not Helpful?

Mediation is not always the best option, even in some family law disputes. For example, in child custody mediation, courts may require mediation. But if there has been a history of domestic violence or child abuse, mediation may not be appropriate. Any time where the relationship where the parties may be so adversarial that they are unwilling to participate will likely require litigation.

How Can I Find a Collaborative Law Attorney?

Collaborative law attorneys take a different approach to legal disputes and work together with the parties to get the best outcome. If you want to avoid litigation, a collaborative legal team may be a good option. If you have questions about mediation or a collaborative approach to your legal issues, talk to a collaborative law firm in your area with experience handling issues like yours.