The short answer is – they are different approaches to resolving disputes without having a trial.
The “Google” Process
When they need information, many people immediately turn to Google. A Google search of the word “mediation” will pull up hundreds of websites and the same is true for “arbitration” and “collaborative law”. The volume of information is overwhelming – some of it is accurate and some of it is not.
A phone call to an experienced lawyer is the best avenue to sort through the avalanche of information Google produces.
The mediator is usually an experienced family law practitioner who is well versed in negotiation techniques. The parties and their lawyers participate in the mediation conference during which the mediator guides the settlement negotiations and helps the parties work out terms that resolve their disputes.
If the case is settled, the mediator informs the judge that an agreement has been made and that orders reflecting the agreement will be filed. If the parties do not reach a settlement, the mediator only informs the judge that a mediation conference occurred, but no agreement was made.
Many courts require the parties to participate in a mediation conference. That requirement has become the norm because the odds are very good that a mediation session will result in the settlement of the case.
Arbitration is a settlement process that involves some aspects of mediation and others of a court trial. Arbitration may be binding (like a court order) or non-binding (like the recommendations of a mediator).
The parties can agree on one or more arbitrators to handle the case. As in mediation, an arbitrator is usually an experienced attorney with training in negotiation skills. The arbitration procedures are similar to the rules encountered in a trial – evidence is presented, objections may be allowed and the arbitrator controls the process much as a judge would during a trial. After all the evidence is presented, the arbitrator announces a ruling concerning the issues. Depending upon the rules of arbitration set by the parties, the arbitrator’s decisions may be final (binding) or they may be advisory (non-binding).
Arbitration is a useful tool because the parties can agree on: 1) who the arbitrator will be, 2) what issues are in dispute, 3) when the sessions will be scheduled, and 4) what effect the decision will carry.
The foundation of collaborative law includes the following agreements: 1) the parties want to settle their case, 2) the parties want to avoid a trial, 3) the parties will make a good faith effort to negotiate a settlement deal, and 4) if the parties are unable to make an agreement and litigation is necessary, the lawyers are obligated to withdraw from the case and the parties will hire different lawyers for the trial.
Collaborative law cases are governed rules that do not apply to other cases. For example, after the court is notified that the case will be handled as a collaborative matter, the judge cannot set the case for trial, the standard discovery rules are not applicable, and the parties have control over procedures and timetables for the case.
Lawyers who handle collaborative cases are generally experienced family law practitioners with extensive training concerning the emotional and psychological aspects of divorce. Neutral experts in the fields of finance and psychology are often retained to assist with gathering pertinent information and guiding the negotiations between the parties.
Selection Of A Route
Following a route aimed at settlement and away from a trial is always a good choice.