Mediation and Collaborative Practice of Ariel B. Winger

Frequently Asked Questions

Q: What is the difference between Mediation and Collaborative Practice (CP)?
A: Mediation and Collaborative Practice are both voluntary, client-centered, private alternatives to resolving family law disputes without going to court. They both have the goal of identifying each party’s goals and interest, facilitating communication, and working cooperatively towards a mutually satisfying resolution. The difference between mediation and CP is the process in reaching those goals.

In mediation, the parties meet with a skilled professional whose role is to assist them in negotiating a legal settlement while remaining “neutral” to each party’s goals. This means the mediator does not advocate for or give legal advice to either party. Each party is encouraged to consult with an independent attorney to get legal advice and to review the final settlement agreement.

In a collaborative case, each party has an attorney and a coach. The attorney’s role is to advise and guide the client through the legal process, while the coach helps the client identify his or her goals and interests and supports the client in communicating effectively and managing emotions. The financial specialist and child specialist are “neutral” and do not advocate a position for either party, rather they provide information that assists the parties in creating their settlement. back to top

Q: What is the difference between Collaborative Practice and Litigation?
A: See chart below from the International Academy of Collaborative Professionals (IACP). back to top

Q: Do I have to use a full “team” in a collaborative divorce?
A: It depends on the case and the needs of the parties. The ultimate goal of a collaborative case is to assist parties in reaching a mutually satisfying agreement without going to court. CP takes a holistic approach by addressing not only the legal and financial issues that come up in divorce, but the emotional ones as well. The support, guidance, and skill provided by team members can greatly minimize the stress and trauma of divorce. For parents, it can lead to new and effective ways of communicating and enhance the co-parenting relationship. back to top

Q: Can people using mediation also use Coaches and Child or Financial Specialists?
A: Yes! The beauty of non-adversarial alternatives is that each process can be created and modified to fit the emotional, practical, and financial needs of each particular case. The use of Collaborative Professionals in Mediation is an excellent choice for parties on a tighter budget who want additional help in sorting out the more complex issues in their case. back to top

Q: What does “client-centered” mean?
A: A client-centered approach relies on the internal wisdom each client has in knowing what is in her or his best interest without relying on an outside authority such as an attorney, judge or family court mediator to make decisions. When taking a client-centered approach, the attorney or mediator’s role is to help the client access that internal knowledge by identifying his or her true needs and interests. When clients assume responsibility for the outcome of their case, final settlements are more likely to be meaningful and withstand the test of time.

In the traditional adversarial system, attorneys, mediators, judges and the law function in a way that reduces the ability of individual parties to make decisions. The result is often a resolution that does not meet the needs of either party. back to top

Q: How do I know which process is best for me?
A: There are many factors to consider when deciding how to proceed, including:

The needs and interests of each party and how opposed they may be
The past and current power dynamics in the relationship
The ability of each party to negotiate in good faith
The commitment of each party to stay out of court
The ability of each party to bring their “best self” to the table
Financial considerations
The complexity of the case (business and real property allocation, substantial assets or debts, children with special needs, domestic violence, alcohol and substance abuse, domestic/same sex partners)

Non-adversarial alternatives require each party to agree on the method of resolution and to feel comfortable enough with each other to sit at the same table with the goal of reaching an agreement. It is often helpful to consult with an attorney to discuss which options may be best suited for your case. back to top

Q: How do I get my partner/spouse to participate?
A: Because mediation and collaborative law are voluntary, you cannot force your spouse to participate. However, researching the options and offering this to your spouse, along with an explanation of how it might benefit her/him can be useful. Making the small investment in a consultation with a collaborative attorney or mediator (with both parties present) can also help your spouse choose the appropriate process. back to top

Q: My partner is abusive (verbally, physically, psychologically). Can we still use Mediation or Collaborative Practice?
A: Domestic violence is a broad term that includes a range of behaviors (emotional, physical, financial, sexual) that involve the assertion of power and control by one partner over the other. When these dynamics exist, it can be challenging for the controlled partner to have a voice or feel comfortable speaking on his/her behalf. Historically, mediation has been considered inappropriate in relationships involving domestic violence. However, the adversarial nature of the court system may also be ineffective in domestic violence cases as they, too, take away the power and control of the parties. Participants often say they feel “beat up” or re-victimized by the courtroom process of litigation.

The support and structure offered by an attorney/mediator skilled in domestic violence cases can help identify abusive dynamics and offer the possibility of change. However, each party must be willing to, committed to, and capable of creating a new dynamic where there is an equal opportunity to speak and be heard and where each party takes responsibility for her/his actions and behavior. In these circumstances, mediation and CP can be beneficial. back to top

Q: How much will it cost?
A: Generally, mediation is much less expensive than collaborative practice which is generally less expensive than litigation. Cost will depend on several factors, including the number of issues that need to be resolved, how complex the issues are, how cooperative each partner is, etc. Fees can be reduced when people are prepared, follow up on tasks, and use their best efforts in communicating with honesty and respect. It is estimated that the average litigated divorce costs each party $18,000. However, complex litigated cases can cost each party $40,000 and higher. back to top

Q: How long will it take?
A: The process can vary greatly and will depend on the same issues that impact costs: the number and complexity of issues, cooperation between the parties, and their level of preparedness. In California, a divorce may not be finalized prior to six months plus one day from the date the Petition and Summons is served on the other spouse. back to top

International Academy of Collaborative Professionals (IACP) Chart: Collaborative vs. Litigation

	Collaborative	Litigation
Who Controls the Process	You and your spouse control the process and can make final decisions	Judge controls process and makes final decisions
Degree of Adversity	You and your spouse pledge mutual respect and openness	Court process is based on an adversarial system
Cost	Costs are manageable, usualy less expensive than litigation; team model is a financially efficient use of experts	Costs are unpredicable and can escalate rapidly including frequency of post-judgement litigation
Timetable	You and your spouse create the timetable	Judge sets the timetable, often delays given crowded court calendars
Use of Outside Experts	Jointly retained specialists provide information and guidance helping you and your spouse develop informed, mutually beneficial solutions	Separate experts are hired to support the litigants’ positions, often at great expense to each
Involvement of Lawyers	Your lawyers work toward mutually created settlement	Lawers fight to win, but someone loses
Privacy	The process and discussion or negotiation details are kept private	Dispute becomes a matter of public record and, sometimes, media attention
Facilitation of Communication	Team of collaborative practice specialists educate and assist you and your spouse on how to effectively communicate with each other	No process designed to facilitate communication
Voluntary vs. Mandatory	Voluntary	Mandatory if not in agreement
Lines of Communication	You and your spouse communicate directly with the assistance of members of your team	You and your spouse negotiate through your lawyers
Court Involvement	Ouside court	Court-based