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Is Collaborative Law different to Mediation?

  • Collaborativelawyer
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16 Sep 2009 16:30 #146944 by Collaborativelawyer
Topic posted by Collaborativelawyer
Collaborative Law is very different from mediation because in mediation there is normally one mediator who helps the disputing parties to talk about their case. A Mediator cannot give either party legal advice and cannot help either side advocate its position. If one side or the other becomes unreasonable or stubborn, or lacks negotiating skill, or is emotionally distraught, the mediation can become unbalanced and if the Mediator tries to deal with the problem the Mediator may be seen by one side or the other as biased whether or not that is so. If the Mediator does not find a way to deal with the problem the mediation can break down or one party might agree to an unfair agreement. If either party has instructed a solicitor then they are unlikely to be present at the mediation session. The parties would therefore have to have separate meetings with their lawyers. This can undermine trust and can mean that was has been agreed in mediation might be reversed once the parties meet with their lawyers.

Collaborative Law was designed to deal with these problems while maintaining a commitment to settlement. Each side has legal advice and advocacy built in to the process. Any legal advice is given within the roundtable meetings if it is required at all and all parties can explore the feasibility of the legal position. More often than not, parties are not interested in what the legal position is but rather how can we sort out these problems with the resources we have?

Even if one side or the other lacks negotiating skill or financial understanding, or is emotionally upset or angry, the playing field is levelled by the direct participation of the specially trained collaborative solicitors.

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16 Sep 2009 16:51 #146953 by YNK000
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Hi CL

How does that affect legal aid, please? I was of the understanding that unless one is willing to participate in mediation, then legal aid will not be granted. Also, that people seeking legal aid won't be eligible for it if they use collabrative lawyers.

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16 Sep 2009 17:12 #146960 by Collaborativelawyer
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You are correct. Unfortunately the legal aid board do not pay for the collaborative law process.

Although pressure is being brought upon them to do so, it is unlikely there will be any immediate change in their position.

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