In addition to collaborative practice, the main dispute resolution options to resolve your family law issues are as follows:
- Negotiation (direct or assisted by your lawyers). This is often position based and characterised by an offer, counter-offer and incremental bargaining until a final agreement is reached.
- Mediation. This is a structured negotiation where an objective and independent third party, the collaborative coach, assists you and your partner reach an agreement. The collaborative coach does not provide legal advice.
- Arbitration. This is a private determination by an impartial third party who can make a binding award.
While all of the above dispute resolution options may effectively resolve your family issues, the key differences between Collaborative Practice and mediation are as follows:
Whilst mediation can be used prior to or after the commencement of Court proceedings, people often turn to mediation too late (e.g. just prior to final hearing). As a result, people may have already spent significant time and money and have suffered the collateral damage of litigation and therefore approach resolution from an adversarial and position-based perspective.
Collaborative practice is designed as an early intervention, to be used instead of litigation. As a result, you and your partner will save money, time and avoid the collateral damage of any litigation and keep the decision-making in your control.
- Assistance from lawyers
In mediation, negotiations may be conducted with or without the assistance of lawyers and therefore you may not have the benefit of obtaining legal advice during mediation negotiations. Collaborative coaches will not draft Court documents (only Parenting Plans or a Heads of Agreement on financial issues) and therefore there may be problems or delays with lawyers drafting the Court documents.
In collaborative practice, you and your partner will have collaborative lawyers to represent you and who will be available from the commencement of the matter until orders are made. Additionally, your collaborative lawyer will prepare you before, advise you during and debrief you after all meetings to ensure you get the most out of the interactions.
- Process v event
Collaborative practice is an ongoing process, while mediation is often a one day event. There may be a preliminary conference and/or preparation required prior to mediation, but typically the expectation is that the mediation will be completed, successfully or not, in one day or less.
The collaborative practice process involves a series of meetings before resolution and therefore there are opportunities to pause and assess, to prepare for each issue to be taken up in the next meeting, and for debriefing. There is more opportunity for refinement and for tailoring the agreement to meet your family’s needs and interests.