The mediation process has some similarities with working on the Collaborative Model for divorce, and new clients frequently ask what distinguishes the two. In each process, the parties, not a judge or other third party, reach agreements through discussion that is mediated by a neutral third party, and the agreements that are reached, when reduced to writing, become parties’ permanent orders. However, a big difference between the two processes is that mediation is most often positional bargaining, with the mediator working to get each party to make some shifts and concessions in their respective positions to find a settlement each of them can live with. In contrast, the Collaborative Model involves an interdisciplinary team that encourages each party to identify their needs and interests, as well as those of other family members and especially children, to find a settlement that best meets all of those needs and interests.
Depending on the style of the mediator and the ability of parties to communicate, mediating parties may or may not be in the same room. Often a mediator goes back and forth between separate rooms for each party, alone or with their respective counsel, carrying offers and counteroffers. While a mediator can help parties negotiate a settlement of all or a subset of the issues in their divorce, the mediator has no ability to impose any decision upon parties if they cannot agree. Benefits of mediation can include settling issues at a lower cost because parties share the hourly rate charged by a single mediator, settlement discussions are kept confidential, and parties can control the outcome of their case without going to trial.
While mediation may be ideal for some parties, its effectiveness may be limited for others. Not all parties are able to communicate effectively. They frequently run the risk of falling into established communication patterns that trigger power struggles, with resultant derailing of the process. If you have questions about whether mediation or the Collaborative Model may work more successfully for you, discuss both with your attorney so that you can understand the pros and cons of each model.