Distinguishing Collaborative Practice & Mediation

General Overview

Training Opportunities

Collaborative Practice & Mediation

New Roles of Professionals

Steps in Collaborative Practice

Advantages of Collaborative Practice

- Two Approaches to Decision Making

- Collaborative Practice and Litigation

Development of Collaborative Practice

Distinguishing Collaborative Practice & Mediation

Family lawyers have led the way in developing alternatives to litigation because they have watched catastrophes unfold as they impose litigation on their clients to resolve the issues that typically arise when a family dissolves and restructures itself. 1

Mediation, as an alternate dispute resolution process, began with family lawyers dissatisfied with the courts as a place to resolve issues and spread from there into the mainstream of civil dispute resolution. 2

While mediation transformed the separation process for many people, hopes that mediation would become the first resort for all divorcing couples faded somewhat as family lawyers began to recognize situations in which mediation was proving ineffective or inappropriate.

"Imbalances in power, sophistication, emotional attitude and stability of the clients, as well as dishonesty, foot-dragging and other less-than-good faith orientations to the mediation, can render effective mediation by a single neutral professional difficult or can compromise the even-handedness and stability of the mediated outcome. Also, the role that must be played by [lawyers] is structurally challenging and despite good intentions all around, can impair the effectiveness of mediation. Since the lawyers often give their advice from the sidelines, outside the mediation process, and since their primary job is seen as ensuring informed consent and careful deliberation rather than moving the parties toward consensual resolution, the work of the mediator can be undone by the equally conscientious work of the lawyer participating from the sidelines." 3

Mediation may break down if one of the following occurs:

there is an imbalance in the clients' knowledge or negotiating skills;
if one of the clients' emotional states is preventing effective communication; or
if the clients are getting conflicting legal advice about the proposals discussed in the mediation. 4

1. Pauline H. Tesler, "Collaborative Practice: What It Is and Why Family Practice Attorneys Need to Know About It" (1999) 13 American Journal of Family Practice 215.
2. Joan B. Kelly, "A Decade of Divorce Mediation Research" (1996) 34 Fam. & Conciliation Ct. Rev. 373.
3. Pauline H. Tesler, Collaborative Practice: Achieving Effective Resolution in Divorce Without Litigation (American Bar Association, 2001) st 3.
4. P.L. Blocksom, "Resolving Estate Disputes Without Litigation: Collaborative Practice As An Alternative" (2002) Papers Presented at the Legal Education Society of Alberta Banff Refresher Course at 4.