Mediators are by definition "neutral third-parties." They facilitate communications to help parties resolve differences or issues between them. Mediators do not have a stake in the outcome, and do not make decisions for the parties. Instead, they help the parties determine what resolutions are acceptable to each of them.
Mediators are trained in conflict resolution and skillful communications, at least. Many are currently or have been in other professions such as law, counseling, business, government, social work, and healing arts. The best mediators are those who have extensive life-experience behind them and have honed their craft of facilitation to make everyone involved feel respected, valued, at ease, and better understood by the mediator's involvement.
Mediators who are also Lawyers, do not represent either party, while they do provide guidance on legal proceedings, legal information, and feedback on legal alternatives that parties often want to assess when evaluating options for resolution of their issues. They can also assist with the drafting of agreements and other legal forms necessary in the completion of legal proceedings.
Descriptions of mediation usually address the importance of a “neutral,” “impartial,” or "unbiased" role. Your mediator is committed to the goal of arriving at agreements and resolution which are acceptable to both parties.
The mediator is not biased. Rather, their clear position is for the wants, needs and goals -of both parties- to be achieved, equally.
A good mediator demonstrates to the included parties that s/he is impartial, while simultaneously conveying sincere concern for each person's interest, and has the skill to validate each ones' perhaps seemingly irreconcilable position.
To this end, a good neutral mediator can hold multiple perspectives simultaneously. The mediator can facilitate communication, articulation and listening between parties in a way that improves the quality of the overall communication field and brings parties closer to resolve than conflict.
Mediation is not necessarily a process used in regards to law suits. There are many arenas that a mediator can work within to facilitate skillful communication, support parties to be fully understood, and support all parties to get resolution, agreement and/or action-plans.
When a Lawyer is working also as a Mediator, that Lawyer is not representing any party.
A Lawyer who is NOT a Mediator represents one party and stands in that party's corner as an advisor, advocate and spearhead of the potential "battle". The adversarial, be it subtle or extreme, is bulit-in to the convention system of law suits and legal conflicts. Mediation, a whole other route, is antidote to the adversarial nature the legal field has typically made systemic.
When the mediator is a lawyer, as I am, I have the unique ability to guide the process in a way that will suit the law. I am still both ethically and legally bound to NOT represent either party. I advocate not for an induividual, but for the resolution of the situation.
With my knowledge of the law and legal considerations surrounding to conflict or the case, and what paperwork needs to be used, I can guide the process with the inclusion of relevant information that furthers the discussions.
When working with a mediator who is not a lawyer, a lawyer may need to be added to the team at certain points for consultation and drawing up documents.
When paying fees to me as a Mediator, the fee is shared between two parties. The fee is also ,most often, somewhat less than a Lawyer fee required by myself or others.
In addition, here at Traver's Collaborative Law and mediation, we often times have the benefit of associates. There are other "junior" mediators, whom we have confidence in, that we can refer clients to as well. This can often help reduce costs. Currently, we do have one assistant who can also help with financial hardship cases.
Collaboration does not mean everyone acts "nice" all the time, and agrees to say "yes" when they really mean "no". Collaboration is a constructive and respectful approach to drafting agreements and/or resolving conflict. All involved, including both clients, both attorneys and any other professionals, agree to work as a team.
We understand that conflict, of any degree, is sensitive and vulnerable territory for anyone. Even when needing to express and/or address the hard stuff, we are prepared. There is a lot of support and guidance from the professionals in the meetingroom for the clients to work in an efficient, goal-oriented direction.
Simply the shared commitment to collaboration covers a lot of ground to keep the adversarial out of the discussion.
There are some fundamentals that greatly distinguish Collaborative Law from conventional law practices.
Firstly, all involved (parties and attorneys) sign an agreement that excluded from the realm of options is for the attorney to go to court for his client. Period. The court option gets ruled out from the start. Within this, you are assured that as you are working closely and vulnerably with a team of people, the process must always stay that way - geared toward all non-adversarial routes possible until resolution of the case.
The participating attorneys are as well agreeing to not do anything that makes the process more adversarial, and moreover, to use astute facilitation methods to reduce any adversarial dynamics in this proceeding in any way possible.
While a relatively new development in the legal field, attorneys who practice collaboratively are extremely well informed, extensively educated and have a unique commitment to doing this collaborative legal work. In this way, it is both a life-purpose and a profession for all of us who practice Collaborative Law.
For collaborative law to be effective beginning to end, both parties do need to hire collaborative lawyers. If the other party is not ready or wiling to hire a collaborative lawyer themselves, it is not recommended to proceed with me as your collaborative lawyer.
THE 4 KEY POINTS FOR THIS ARE:
1. ATTORNEYS can no longer participate if case starts to go to court
2. ATTORNEYS UPHOLD A COMMITMENT to not threaten the other side with what the Judge "would or would not go for" as a way of intimidation. This strategy would be used frequently in typical litigation whenever they don't like what other party is asking for, for instance.
3. LAW IS DISCUSSED more the way you study law than how the average Attorney practices. In school, we study an issue and are presented the diverse possibilities of outcome for the issue and the reason behind those possibilities.
In the average Lawyer's strategy, information and angles of possibilities are presented as if there is no uncertainty.
Collaborative Layers stand in a position of vastly more transparency. They are more frank with their knowledge and accurately layout all possibilities.
In litigated cases, typically the Attorney uses strategy tries to define an outcome and takes that specific direction.
4. THE INTEGRATION OF other neutral professionals into the case for discussion, information, guidance and support.
All professionals plan as a team in advance with details such as: how to set up the meetings, strategize the timing of when to address items, and research and gather information that is needed before items are substantively discussed. Also, an agenda is circulated in advance of meetings.
Your team of professionals provide resources to help you find ways to understand your needs better, and to express yourself better. In a process facilitated for each party such as this, you get help to put on the table things that are then, very likely, not as difficult to resolve.
We use methods to help clients express their true needs. And, to understand that sometimes how we express "need" can be offensive and thus become counter to getting to agreement. Our methods of discussion and facilitation allow clients to express "needs" in a way that get us more swiftly to agreement.
Team building is another major aspect in our methods. Collaborative law in Colorado especially emphasizes involving neutral professionals to help everyone work collaboratively on disagreements as they come up. Mediators will be involved. In cases that involve complex financials, we always use a neutral financial professional. They are at the center of gathering all financial information and work on the case, so that process is in the hands of someone who has no allegiance to either party at all. If child custody is involved, for example, we would likely include a neutral" Child Specialist."
Collaborative Law starts with the same intention as mediation. That is, how can we help those involved not use an adversarial court proceeding to get their case done, and do it more constructively instead.
With a collaborative team of professionals, yes, clients could expect to stay out of court. Your particular situation determines how much process, if any small amount, needs to be done in court.
WIth collaborative law, both attorneys sign an agreement to NOT take the other party involved to court and to not represent their own client in a court setting in this case. This is binding and a necessary pre-requistive to beginning a collaborative law case
Expect to see the formation of a unique team. A team of professionals, both attorneys and a neutral third party, at least. Expect to be with their guidance, having your input requested and respected.
You could expect to face the challenges of your case, maybe even more directly than prior or than otherwise, but while having this team of experienced and respectful professionals facilitating you well.
There is likely to be a lot of discussion and negotiation involved. It might be passionate, even strong. We do not try to pretend; we cannot make people feel easy about something that is hard. We facilitate the upholding of the shared commitment to express disagreements respectfully, and to listen respectfully.
Attorneys themselves will not join in any disrespectful communications when that tone might arise. They will not, as is common in convention, take the role of a "louder mouth piece" for their client. It is quite the opposite: they try to support communications to be effective.
Attorneys involved do not just lay down any authoritarian moves. If you cannot see your way to agree with an item in discussion, we help. We help people understand what is causing them to feel stuck on a non-agreement point. We ask inquiring questions, for instance. What is important to you about this? What is at stake here? Usually what is at stake for both parties is not as adversarial as it seems. For instance, if we get to understand that the strategy beneath the named desire could be re-articulated as "to get to feel safe", most people would agree on that need.
The Collaborative Process requires the parties themselves to work, to be in the middle of their own process. This does stand out as different than the typical conventional law proceding. In that way, there could be more experience of frustrations. Many expect it will be better than an adversarial process. It does sound better, relieving. To avoid that kind of added pain in our situation is surely better, and yes, in the end it is more rewarding. We typically find a more complete resolution can be gained, and certainly less damage is done.