Collaboration/Mediation
 


COLLABORATIVE Practice/MEDIATION: THE DIFFERENCE

COLLABORATIVE PRACTICE
MEDIATION
1  Each client has own attorney involved throughout.  Mediator is a neutral who facilitates the   development of an agreement; each client obtains the services of his/her own attorney to review the agreement and advise before it is signed.
2  Legal advice is built into the entire negotiation.  Mediator cannot give legal advice. One or both clients may choose to have an attorney for background consultation during the mediation process.
3  Attorneys and clients participate together in negotiations; when possible, clients carry the main negotiation and attorneys act as advisers.  Occasionally, clients choose to have their attorneys present during the mediation; however, clients will remain the main participants.
4  Each CL attorney is committed to settlement; the CL attorneys must withdraw if the case does not settle or if all discovery (information and documentation) is not voluntarily forthcoming.  The attorneys that each client hires to complete the process may encourage settlement rather than litigation but does not have the same commit-ment to settlement that exists in a collaborative case.
5  CL attorneys take response-bility for obtaining all relevant information and documentation and warrant to each other that they have done so.  The mediator must work with the information and documentation that clients are willing to produce and has no leverage to help in obtaining discovery that a client is reluctant to produce.
6  CL attorneys, unless they are also mediators, are not trained to assist clients in developing improved communication skills.  The mediator models communication skills that assist clients in improving their own communication skills with each other.
7  In collaborative cases, neutral experts may be brought in to assist with specific matters; attorneys and clients agree that there will be no battle of experts.  Clients in mediation may agree upon a neutral expert but do not share a commitment to avoiding a battle of experts.
8  CL attorneys carry the agreement forward to completion of the entire process in the courts.  Mediator cannot complete the process in court; clients need attorneys to complete the process.
 
 


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San Carlos, CA