The Mediator and Collaborative Law

Collaborative law and mediation are not the same thing—although they hold several qualities in common. However, that does not mean that mediators can’t or don’t play a role in the Collaborative process. 

In Alaska’s Collaborative community, mediators are considered potential facilitators of the Collaborative process and they have a set of guidelines to follow, just as other allied professionals do.

Mediators in the Collaborative process are held to the same standard of qualification as other allied professionals. Namely,

  • They must be credentialed as a mediator.
  • They must understand their role in the context of Collaborative practice.

Mediators do not, in Alaska, typically replace the role of the key allied professionals (the Financial Professional and the Mental Health Professional). Rather, their role is to provide additional facilitation as a neutral in the Collaborative process in order to further help in promoting an agreement between clients. This can be particularly beneficial even when a Collaborative lawyer is trained as a mediator—because while Collaborative lawyers are working in a Collaborative context, they are, by nature, not considered neutral and cannot be because of their legal obligations to, and relationship with, their Collaborative law clients.

Mediators can bring the following qualities to the table in the Collaborative process:

  • Client-centered consciousness: mediators are particularly deft at keeping the client-centered approach at the surface of all decisions made. Their focus, which is not influenced by the perspective/advice of other allied professionals, is to keep the decisions in the hands of the clients. When clients are conscious of why and how they are making decisions, it is easier for them to embrace those decisions and reach a truly, mutually beneficial agreement.
  • Added conflict protection: Collaborative professionals are trained in Collaborative principles that reduce the possibility of conflict within the team. However, there may be cases in which that framework is more fragile or on the brink of breaking down. A mediator is trained specifically in conflict resolution and a) recognizes indications of arising conflict among the team as well as b) addresses conflict in order to facilitate a resolution—regardless of who is in conflict with whom. Mediators are not aligned with any one party (just as other allied professionals), but they have the added skills required to address conflict. Whereas other neutral professionals may easily recognize the potential for or actuality of a conflict, but may require support in managing that conflict. In this way, mediators provide added insurance of a truly Collaborative process.
  • Facilitation: While other Collaborative professionals may be skilled at facilitating meetings, it is possible that they have a particularly heavy work load or that the Collaborative case is demanding of them in other ways that inhibit their ability to sufficiently facilitate. Mediators are able to maximize the effectiveness of managing the Collaborative dynamics, and filling the role of the facilitator can be an invaluable asset to the rest of the team.

When considering the Collaborative process, it is important to understand how it is different from mediation, but that does not exclude mediators from the process. In fact, a Collaborative team that is open to the inclusion of a mediator, when necessary, is a Collaborative team that is truly working for the clients.