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What is Mediation and Collaborative Law?

Definition of Collaborative Law

Collaborative law is an alternative to a traditional courtroom for resolving disputes. Trials are long and expensive procedures which offer a limited range of solutions. Collaborative law can often resolve certain cases quickly, inexpensively, and with custom outcomes.

In a collaborative setting, the parties discuss their dispute in person and work together to create a solution. There are two main types of collaborative law: negotiation and mediation. In a negotiation, the parties, or their attorneys, talk about the dispute directly and attempt to create a solution. Mediation is similar, but in mediation, a neutral third person sits in on the negotiation and helps the parties work toward a solution. In either case, if the parties reach a solution, the mediator, or one of the parties, will write up an agreement which will usually get approved by a judge and become a binding court order.

Terms to Know

  • Alternative Dispute Resolution (ADR): The formal name for any process that ends a dispute outside a courtroom. Typically, this includes negotiation, mediation, or arbitration.

Practice Notes

While mediation is a great solution for many people, it is not for every case. Criminal cases or other cases that involve violence are not recommended for collaborative law because the victims often find it difficult to face their attackers in such an informal setting. Additionally, the mediation process is unique to each mediation and typically kept confidential. While some people might find this secrecy comforting, people who are not experts in the law have no way of knowing whether their outcome was fair. Everything that happens in a trial is recorded, and trial records can often be obtained through a court clerk. Someone who went through a trial without an attorney can always take the record to an attorney to make sure that the outcome was correct.

Related Practice Areas

Collaborative law can be used in almost every practice area, but there are some practice areas in which it is used more than others. Trial courts are not particularly good at addressing the parties' emotional needs, but collaborative law's flexibility allows it to design solutions that make the parties feel better. Mediation agreements can include an order to send an apology note, or even flowers. Thus, mediation is often used in areas that are likely to have high emotional content, such as family law.

Collaborative law is also used in cases where the stakes are relatively small, such as small claims or eviction proceedings, because the parties can often reach a fair agreement without going through the court. For example, in an eviction case, if a tenant fell behind on his rent, his landlord may file suit to evict him, and if the case went before a judge the tenant would almost certainly be evicted. However, mediation or a negotiation may produce an agreement which allows the tenant to pay back rent, or allows the tenant to do light maintenance work in lieu of rent.

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