Collaborative Law

Litigation

Mediation

Comments and Explanations

Each party has independent legal advice

yes

yes

sometimes

Mediators cannot give legal advice to spouses. Sometimes (but rarely in Texas) clients will go to mediation without lawyers. This will work in simple cases, but not in complex cases where parties need advice about their legal rights.

The parties create customized solutions to fit their specific needs

yes

no

yes

Judges are required to follow specific rules and guidelines that might not fit every situation.

The parties are in control of the pace of the divorce process

yes

no

sometimes

Mediation is often part of the litigation system. Parties are required to try to settle through mediation before they go to court. Mediation sessions often feel coercive to parties, who have the threat of court looming before them. In the Collaborative Law model, the parties decide on the pace they want to proceed, and know that they might not get their interests satisfied if they are not willing to be flexible about timing.

Parties have a structured process to follow as a "roadmap" to resolution

yes

no

no

Collaborative Law is a structured process designed to promote settlement.

Parties cooperate in providing information needed to make informed decisions

yes

no

sometimes

The litigation model includes discovery, which is often cumbersome and wastes the parties' resources. Lawyers sometimes use a strategy where they give the other party only the minimum required amount of information, hoping to gain an advantage at trial.

Parties are encouraged to treat the other party respectfully and to preserve important relationships

yes

no

yes

Litigation pits people against each other in a win/lose system.

Parties have assurance that their spouse's (or the other party's) lawyer will not use their words against them

yes

no

no

Collaborative lawyers can never take a case that is proceeding under the Collaborative Law model to court. If a case needs litigation, the parties get different lawyers for court.

Parties learn new, more useful ways to communicate as they move forward as co-parents

yes

no

no

In mediation, the parties sometimes never see each other. The mediator uses "shuttle diplomacy" to try to get the parties to reach an agreement.

Both parties have support from experts on financial, parenting and other issues that arise in their case

yes

sometimes

no

Experts are hired in litigation, but generally each party hires his or her own expert to support his or her position.

The parties receive reliable information from experts when they need more information

yes

no

no

Experts hired for litigation are expected to support a party's position. Often, each expert has wildly different opinions, leaving the parties and the judge wondering if either is reliable.

The parties have a safe place to express their true interests and negotiate a workable resolution

yes

no

no

While mediation taken alone might provide a safe environment for negotiation, when paired with litigation, it often feels coercive and overwhelming.

Solutions are based on what the parties want to achieve at a high level (their interests)

yes

no

sometimes

Some mediators use interest-based negotiation methods, but often, without ongoing guidance, the parties revert to positional bargaining..

Parties are encouraged to look at the long- and short-term effects of their decisions

yes

no

sometimes

Neutral financial professionals and child specialists bring a variety of services to clients in Collaborative law. In litigation, they are just hired for the trial.

Parties can be forced to do or not do something

no

yes

no

Mediators cannot force a settlement on parties. Arbitration is another alternative that does guarantee resolution.

Parties are guaranteed that they will have a resolution to their problems

no

yes

no

A judge or jury will make a decision, even if it seems to be the lesser of two evils, or to produce an unfair result.

Parties feel threatened that they will lose at trial if they do not do what the other party wants

no

yes

yes

As long as the parties are operating within the Collaborative Law model, no one will go to court or threaten to  go to court.

Parties and lawyers work together to solve a problem

yes

no

sometimes

Lawyers, clients and experts all have the same goal in Collaborative Law – to find a way to resolve the parties' differences in a way that protects what is most important to them.