April 28, 2010

Mediation and Collaborative Practice: What About The Law?

The role of the law in mediation and Collaborative Practice is a frequent discussion among divorce professionals, and I had the pleasure of addressing this topic, with three colleague friends of mine, at the recent Collaborative Practice California Celebration V conference. For our presentation we came up with a few main points:

  • In mediation and Collaborative processes the law does not control
  • To reach resolution in either process you only need the consent of the other person
  • The law serves two purposes in mediation and Collaborative Practice:
  1. It is a source for resolution options; the law is about how other people resolve their divorce issues.
  2. It is necessary to an analysis of whether you will achieve your best possible outcome within a mediation or Collaborative Practice process, or if your best possible outcome is more likely to be achieved in a process where the law does control

Sometimes I have clients who, when told the possible outcome spectrum of the law on a certain subject, respond by saying, “That’s great. I want that. Let’s do that.” That’s when I remind them, it’s an option to follow the law if their spouse agrees with them, but only to the extent that there is agreement. And if their spouse doesn’t agree with them, then we’d need to do a comprehensive risk/benefit analysis of the repercussions of leaving the mediation process for the traditional adversarial process. That analysis includes the cost of an attorney to get that outcome; the likelihood of losing on that issue or other issues; what the law is on other issues—maybe the law seems great on one issue, but seems terrible on another issue; the risk of losing control of the terms of the agreement to attorneys and/or a judge; the affect that fighting out in a traditional process might have to children or family.

In my office, it’s typical for that big picture to put the law right back in its place as a reference source for potential ways to approach issues—and we go back to working out an agreement that is acceptable to both people.

I would highly recommend Mediation Offices’ services.

About Unmani’s incredible unbiased mediation process: if you are looking for a mediator who looks to co-create win/win outcomes, in an otherwise impossible environment, she is the one. Her style is nothing less than professional, proficient, and refreshing.  Clients are given a clear understanding of the mediation/divorce process from beginning to end. I felt so fortunate to have agreed to my ex-husbands request to have her as our mediator.  Please seek her out if you need this service.  You truly become a better person after her counsel!

- Carol W.
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