This is probably the most common question we receive at the office. While Jill and Kelly share the same last name, they are not related.

Consensual Dispute Resolution (CDR), means that the resolution of a conflict must be voluntarily agreed to by both parties, as opposed to having the resolution determined by a 3rd party, such as a judge or arbitrator. Both mediation and collaborative law are CDR processes. At first, mediation and collaborative law were referred to as ADR (Alternative Dispute Resolution) processes, because they are alternatives to litigation. They are now more frequently referred to as CDR since these processes are now mainstream, rather than alternative, and also because the word “Consensual” captures what distinguishes these processes from litigation.

Mediation is a legal option for resolving conflict without going to court. A neutral mediator guides participants to discuss and negotiate their dispute directly, rather than through attorneys, and does not impose any decisions, as would a judge or arbitrator.

Mediation can be beneficial for a wide range of conflicts, particularly conflicts where the parties have family or interpersonal relationships that could benefit from a non-adversarial approach that seeks to enable decision-making, heal misunderstandings and preserve relationships. Examples include divorce, premarital agreements, co-habitation agreements, separation of unmarried couples, post-divorce conflicts, neighbor disputes, family business matters and estate settlements.

Collaborative law is a process that offers parties the support of having a lawyer represent them, within a non-adverserial framework. In a collaborative divorce or premarital agreement, each party hires an attorney, and the issues are discussed and resolved in 4-way meetings. Sometimes the meetings can include more than 4 people, if the parties decide to include other professions, such as a financial neutral or therapist. In a divorce process, both parties and the attorneys commit that they will not go to court to resolve the dispute. If either party later decides to go to court, then both attorneys resign from the case, and the parties find new attorneys to represent them in court. This provides both the parties and the attorneys with an incentive to resolve the dispute outside of court.

Collaborative law can be beneficial for a wide range of conflicts, particularly conflicts where the parties have a family or interpersonal relationship that could benefit from a non-adversarial approach but that require the support of individual attorneys for each party. Examples include divorce, premarital agreements, cohabitation agreements, separation of unmarried couples, post-divorce conflicts, neighbor disputes, family business matters and estate settlements.

The first question to ask yourself is whether both you and your spouse (or the other person you are in conflict with) desire to resolve your dispute in a non-adversarial manner. Because both process are voluntary, you cannot force the other party to mediate or collaborate-  you must both want to engage in the process. If you both want a non-adversarial process, then ask yourself whether you would feel comfortable negotiating directly (in the presence of a mediator) or whether you would prefer to have an attorney representing you in the negotiations. If you are comfortable using an attorney as a consultant only outside of the negotiations, then mediation is probably the most cost-effective method for you. If you prefer the support of an attorney present during the negotiations, then collaborative law is probably a more cost-effective choice for you. Although you are welcome to bring an attorney to mediation, you are then paying for multiple professionals to attend the meetings.

In divorce mediation, each party must feel safe sitting in the mediation room with their spouse and be willing and able to assert their own views. In situations where there is a history of domestic violence, the abused spouse may fear that asserting his or herself in mediation will have violent consequence. It is possible that there is no history of domestic violence, and yet a spouse might still fear asserting his or herself in mediation. In  both cases, divorce mediation is generally not appropriate. Moreover, both parties must be willing to listen to the other party and to come to an agreement that is fair to both parties. If a party is unable or unwilling to compromise, and wants the other party to suffer through the legal process rather than come to a fair agreement that satisfies the needs of both parties, then mediation would not likely be appropriate.

While mediation does not necessarily eliminate the need for an individual attorney, it does change the lawyer’s role from one of negotiation to consultant, which generally requires fewer hours of a lawyer’s time, saving time and money.

This depends on the level of involvement you would like the lawyer to have. If the situation is one in which there was a long marriage, many assets and children, you may want to see a lawyer before you begin mediation to have an idea of your legal rights and obligations and to be better prepared in negotiations. If it is a relatively “simple” divorce, then you may only need to consult an attorney at the end of the process to review the Judgment or Agreement with you.

The cost of resolving a dispute using mediation or collaborative law varies depending on the complexity of the situation, but it is generally much less than the cost of litigating the same dispute. The savings result from direct communication between the parties and attorneys without the need for court conferences, depositions, motions and other litigation procedures that require significant attorney time and therefore generate substantial legal fees.