Mediation plays a very different role in collaborative cases than it does in traditional litigation. Understanding the differences can help lawyers and clients prepare for what mediation will look like—and how it can shape the outcome—in each context.
Why might you end up in mediation in a collaborative case?
The average collaborative case does not typically go to mediation. Collaborative law is in fact its own statutory form of Alternative Dispute Resolution. Nevertheless, sometimes within the collaboratives process the parties choose to hire a mediator and spend a day or more in mediation to settle their case. Among the possible
reasons for this development, the first is that the parties hit a wall and cannot reach a resolution. In this situation, mediation is a last-ditch effort before opting out of the collaborative process. Alternatively, the parties need a deadline or target date for resolution, which the mediation session can provide. Finally, it is more convenient for the clients to take one day off of work to mediate than to hold several shorter collaborative sessions over multiple days.
How does collaborative mediation differ? Or does it?
One question that arises when a collaborative case goes to mediation is whether the neutrals will attend. Most collaborative cases feature a neutral mental health professional and a neutral financial professional. Sometimes a neutral child specialist is also involved. In most instances, some or all of those professionals attend
mediation in addition to the lawyers. When mediating a collaborative case with neutrals present, one needs to be aware and educate the clients on how confidentiality is affected. Both collaboration and mediation are statutorily confidential processes. In both, the lawyers maintain attorney/client privilege. But one difference when mediating is that the mediator can and must keep a confidence if asked to, and the neutrals from the collaborative case cannot keep a confidence.
If the parties want to tell the mediator something confidential, one should ask the neutrals to step out for a minute.
What do the logistics look like in a collaborative mediation?
The parties have less downtime, as a mediator can be in one room while a neutral works on a different issue in the other. For example, in a divorce case, the mediator may start with Party A, discussing possible financial division with the neutral financial professional, while the mental health neutral and/or child specialist are with Party B discussing parenting plan details. In one real-world example, all of the various parties participated in person except for the child specialist who attended via
Zoom and gave feedback to the parents on the children’s wishes and concerns and goals. That feedback during mediation was incredibly helpful in settling the parenting issues.
Is the focus of the conversations different?
One of the big differences between litigation and collaboration relates to settlement discussions. In litigation, the parties are constantly comparing possible alternatives against what the lawyers think a court would do. Meanwhile, in collaborative cases, there is generally more of an interest-based focus. That does not mean that in collaborative mediation we do not discuss what is likely to happen in court; rather, that aspect is stressed less and is not the primary focus. Instead, the
primary focus is on the goals that the parties set during the early phase of their collaborative case, together with their interests and concerns. Collaborative settlements typically are more creative than litigation settlements.
Are collaborative mediations harder or easier than litigation mediations?
The collaborative process could be harder, if the parties have decided to mediate as a last resort before opting out. In most cases, this means
that they have already had at least a few mini settlement sessions that are often called “joint meetings” (typically lasting two hours at a time). If the parties are coming to mediation, it could be because those settlement talks were unsuccessful. Additionally, they have likely already had the help of two lawyers and two neutrals and were not successful. On the other hand, one advantage that mediation has in litigation and collaboration is the expectation of resolution in a single day. The possibility and expectation of signing a binding agreement can be very attractive and can cause some previously moribund settlement negotiations to break loose.
Under the Family Code, only through mediation does one have the privilege of signing a binding agreement that is not revokable or modifiable by the court.
What makes a good collaborative mediator? It helps if the mediator is collaboratively trained to understand what the parties have been participating in and to understand the paradigm shift from litigation. Other important traits include being a good listener, being an effective connector with other people, having the ability to take in and process a lot of information quickly, being an ideator, and having a willingness to persevere. In Texas, we are fortunate to have both the collaborative process and mediation available to help people reach a peaceful and acceptable resolution to their disputes. It has been an honor to be involved with both.
Check out the full article in Headnote’s November issue on page. 16: Headnotes November 2025