For more information read the International Academy of Collaborative Professionals' presentaion:
COLLABORATIVE PRACTICE: A Better Approach to Conflict Resolution

In mediation, an impartial third party (the mediator) assists the negotiations of both parties and tries to help settle your case. However, the mediator cannot give either of you legal advice or be an advocate for either side. If there are lawyers for each of you, they may or may not be present at the mediation sessions, but if they are not present, then you can consult them between mediation sessions. When there’s an agreement, the mediator prepares a draft of the settlement terms for review and editing by both you and your lawyers.

Collaborative Practice allows you both to have lawyers present during the negotiation process to keep settlement as the top priority. The lawyers, who have training similar to mediators, work with their clients and one another to assure a balanced process that’s positive and productive. When there is agreement, a document is drafted by the lawyers, and reviewed and edited by you both until everyone is satisfied.

Both Collaborative Practice and mediation rely on voluntary, free exchange of information and commitment to resolutions respecting everyone’s shared goals. If mediation doesn’t result in a settlement, you may choose to use your counsel in litigation, if this is what you and your lawyer have agreed. In Collaborative Practice, the lawyers and parties sign an agreement aligning everyone’s interests in resolution. It specifically states that the Collaborative attorneys and other professional team members are disqualified from participating in litigation if the Collaborative process ends without reaching an agreement. Your choice of mediation or Collaborative Practice should be made with professional advice.

Mediation is a process in which a couple meets with a trained mediator for the purpose of negotiating and resolving their issues. The mediator is independent, neutral and impartial. His role is to facilitate constructive communication aimed at resolving the issues. The mediator is not like a judge or an arbitrator who makes decision for the parties. Rather, the mediator assists, supports and guides the parties through direct negotiations.

Mediation usually occurs at the mediator’s office and involves anywhere from one to ten or more mediation sessions, depending upon the complexity and number of the issues. All of the communications made during mediation are “off the record”, meaning that neither party is allowed to subsequently reveal communications made during mediation to a judge or arbitrator if an agreement is not reached. The purpose is to encourage a free and healthy exchange of ideas during the mediation process without fear that the ideas or proposals could be used against you subsequently in court.

If an agreement or agreements are reached during mediation they are typically summarized by the mediator in a report. The agreements reached are then reviewed by the parties with their lawyers who provide legal advice and practical suggestions. Very often the agreements reached in mediation are translated into a legally binding contract called a Separation Agreement. Until this occurs the agreements reached in mediation are not binding on either party.

Mediation is usually a relatively inexpensive way to negotiate since the parties share the hourly rate of the mediator and in most circumstances do not pay their lawyers to be present during mediation. Having lawyers present, however, is always an option where one or both parties feel the need for the lawyer’s support and input during the mediation process.

When a couple cannot resolve one or more issues through mediation, collaborative law or traditional negotiations it is open to them to appoint a qualified person to make a decision for them. The person appointed to make the decision is a called an arbitrator under the Arbitration Act of Ontario . The arbitrator is given virtually identical powers to those possessed by Judges. In effect, the arbitrator’s decision (award) takes the place of a court order and may be enforced in the same manner as a court order.

The advantages of appointing an arbitrator to make a decision on unresolved issues over going to court include that when you go to court you cannot chose your Judge or the rules that will apply to the litigation process. An arbitrator on the other hand is a person chosen by both parties (often a lawyer trained in the area of a dispute) and the parties choose how formal or informal the decision making process will be.

Whether formal or informal, the arbitration process usually takes place at a lawyer’s office and typically includes the presentation of evidence (testimony, documents, etc.) and a summary by the parties’ lawyers of their client’s position and arguments.

Once the hearing is completed the arbitrator will submit an award (a written decision) to the parties which can be appealed but only on very limited grounds. The parties may even choose to give up their right of appeal and make the arbitrator’s award final.

As with a mediator, the parties normally share the cost of the Arbitrator whose hourly rate will be comparable to that of most lawyers’ hourly rates. In many cases private arbitration will cost parties less than litigation.