In this post I am going to explain the difference between Mediator ADR and Collaborative Law ADR.
“ADR” is of course Alternative Dispute Resolution.
Both are ADR. Both are aimed at managing and resolving disputes outside of the court/tribunal system and with the goal of making litigation the very last resort.
But what are the key differences?
The principal differences are these –
– The Mediator or Co-Mediators (if two mediators are working together) are retained by all the parties to the dispute with a brief to help the parties manage and resolve the dispute by use of a range of ADR models, methods and strategies. By contrast, in collaborative law ADR, each party will have retained his/her own lawyer who is trained in collaborative law practice. The collaborative lawyers then establish their own protocol to try and manage and resolve the dispute using collaborative law models, methods and strategies.
– The parties who retain a mediator or co-mediators may or may not have lawyers assisting them. It is not essential that they have independent legal representation. Whether or not a party chooses to have a lawyer involved in the dispute resolution process with a mediator is entirely for the party to decide. If a mediator believes it would assist that party to have legal representation during the ADR process the mediator will communicate that to the party. With Collaborative law, the ADR process is being managed for the parties by their lawyers who are trained in collaborative law.
– With mediator facilitated ADR, the mediator will devise a blueprint or protocol to manage and resolve the dispute which may include a number of pre-mediation steps and actions to enhance prospects of success at mediation. This will be written up in the contract that all parties sign with the mediator. When they sign the contract with the mediator they agree to adopt that blueprint or protocol and abide by its terms and conditions. They agree to participate in the process in good faith. With Collaborative law ADR, the parties rely on their lawyers to draw up an agreement to deal with the dispute that will reflect and implement core collaborative law principles such as to act in good faith, not to take the matter to court or threaten court action during the negotiations, the withdrawal of those lawyers if ADR fails and the parties decide to go to court, to engage in principled and interest-based negotiation rather than positional rights and power based negotiation typical in litigation and so on.
– With Mediator ADR, if the ADR process is entered into pre-litigation and fails to achieve finality with the dispute, the parties are free to go to court if they wish. Often, and regrettably, many lawyers recommend to their clients that they commence litigation first and then make use of mediation services before they commit to a final hearing date being fixed by the court. This is called “mediation in the shadow of litigation”, and many lawyers prefer this style of mediation as they believe that without the threat of an imminent hearing and the costs of preparation for that hearing, and the uncertainty of the outcome at the hearing, their clients are not likely to settle their dispute. I personally totally disagree with this view and approach. With Collaborative law, the ADR is always conducted before any litigation has been commenced and this is a key feature of collaborative law.
These are some of the key differences between Mediator facilitated and managed ADR and Collaborative law ADR.
I will go into some of the finer distinctions in a later post.
Christopher J Whitelaw
Barrister and Mediator
Commercial Disputes Management Chambers
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