Options for Your Future

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Traditional Adversarial Litigation

What It Is:

Each party hires their own lawyer to fight on their behalf.  Generally, both parties demand as much as they can get—but both usually end up wanting the same awards from the court.  The attorneys use formal court procedures such as written questions answered under oath (interrogatories), oral questions answered under oath in front of a court reporter (depositions) and subpoenas (use of the court’s power to obtain documents from third parties), to argue that their client should be the one to “win.” 

During this process, the attorneys negotiate with each other on their client’s behalf. These negotiations are often lengthy, positional, and filled with “win-lose” proposals. 

The reason some people choose this adversarial and stressful process is that they want their day in court. Ironically, only 2% of litigated cases make it to trial, often with hasty and pressured decisions made on the court room steps. Unfortunately, this usually occurs only after the parties and their children have incurred substantial financial and emotional costs.

Furthermore, in the cases that do make it to trial, the ultimate settlement is frequently delayed by multiple trial dates. Even after a final settlement is awarded, closure and peace for the family is often delayed for years beyond that, as 90% of litigated cases return to court for a multitude of post-judgment issues. 

Potential Advantages:
  • The attorneys fight for their client (minimal involvement of the client in negotiations)
  • May be the only choice in particularly difficult cases involving substance abuse or domestic violence
  • Decisions can be appealed
  • Clients may feel they’ve “had their day in court”
  • Parties are able to extend the conflict if they desire to do so
  • The timing of the case is structured by the court schedule, helping some clients feel that they are moving forward and preventing stalling to some degree.
Potential Disadvantages:
  • If the case makes it to trial, the future of the couple and their children is determined by a complete stranger
  • Information gathering is inefficient passing through a client- lawyer- lawyer-client and back chain of communication
  • Parties are not as actively involved in making decisions that will influence the rest of their lives
  • Trials are public
  • Litigation is usually the most costly option—financially and emotionally
  • Litigation makes it difficult to preserve the family as the parties are cast into the roles of  “victim” and “villain,” often calling on friends and family to choose sides in the arguments
  • Children are scarred by the process—watching their parents cast each other into these roles and sometimes being forced to testify against one parent
  • Parties desiring their “day in court” are often disappointed, as Judges are rarely disturbed by the “victim’s” perceived wrongs
  • Trials frequently result in continuing conflict and require additional time, emotions, and money to return to court.
  • The timing of the case is dictated by the court, leaving many clients feeling pressured and resulting in dissatisfaction with the settlement and often, returning to court for post-judgment issues.

 

Appropriate Dispute Resolutions

Mediation

What It Is:

Mediation utilizes the services of a neutral third party.  The process in non-binding and the role of the mediator is that of a communicating agent between the parties whose goal is to assist with negotiating a settlement.  A mediator (who may be a lawyer, mental health professional, or other professional with mediation training) has an equal and balanced responsibility to assist each party without favoring a specific outcome or one party’s interests over the others.  On an issue by issue basis, the mediator will attempt to fully understand each party’s point of view as well as needs, interest, and priorities.  The mediator also assists the parties in understanding each other.

Mediation can be utilized at any point in the process. Unfortunately, most people are only familiar with the use of mediation in the late stages of divorce, ordered by the court as a last ditch effort to reach agreement see if their issues can be resolved before the judge will allow a trial.  While this opportunity for both parties to present their case to a neutral third party to gain insight on the strength of their case and get assistance reaching agreement can be effective and often results in a settlement, in my personal experience, because it is done in frustration and under immense pressure to avoid trial, these settlements often lack the parties having ownership and result in emotional and financial drainage which leads them to settle. I equate this with buying a car from a pushy salesman.  Even if you do get the best deal in town, you will feel buyer’s remorse because you felt pressured into the decision.

The healthier, less pressuring and stressful option is Early Stage Mediation, which can begin before a case is filed or even before attorneys are hired.  The spouses meet with the mediator to systematically work through all the issues that must be resolved to achieve closure. Although mediators do not have authority to force either party into an agreement or make decisions on behalf of the parties, if the mediator drafts an agreement, and the parties agree to and sign it, it becomes binding.  Attorneys are then needed to transcribe the settlement into the legal documentation necessary to complete the process in court.

Often times, utilizing a mediator before attorneys are hired allows the couple to have more open and honest discussions in a non-threatening atmosphere.  

Potential Advantages:
  • The process promotes communication and cooperation, resulting in more positive family relationships and minimizing conflict
  • Allows the parties to make decisions regarding their future
  • It is confidential—there is no public disclosure of personal problems and finances
  • Usually more cost effective than litigation
Potential Disadvantages:
  • Because a mediator is neutral, he or she cannot personally advise either party
  • If there is an imbalance of power in the relationship, the less dominant party may have less of an opportunity and safe space to express important concerns (one way to circumvent this is to have the support of attorneys in the process, but that adds an additional layer of expense)

 

Collaborative Practice

What It Is:

Collaborative Practice is a unique problem solving process that enables parties to resolve their issues without going to court.  The cornerstone of this process is the use of an inter-disciplinary team of professionals who help the parties in all aspects of the proceedings – legal, financial and emotional. Each spouse or partner retains their own attorney specifically trained in the Collaborative Process, whose goal is to help create a workable settlement that protects the family from the damaging effects of conflict.  The goal of the team of professionals is to guide the parties to deeper and longer lasting resolutions through educated decision making focused on the family’s particular needs rather than forcing the typical cookie-cutter judgment.  

Potential Advantages:
  • You retain control. Though each party has a lawyer, you and your spouse or partner take responsibility for shaping your settlement as the key members of the team
  • You gain assistance in crafting a settlement cooperatively with your spouse or partner, benefiting from your attorney’s advocacy, problem solving, and negotiating skills.
  • With the threat of “go to court” eliminated, you can focus on finding positive solutions that work for both parties
  • You can get more from your resources: the Collaborative Process is generally less time consuming and costly than litigation. Agreements can be finalized much more quickly.
  • The process is structured to produce a better settlement, uniquely tailored to your family’s specific needs.  Agreements produced by the Collaborative Process are more detailed and complete than those issued by judges, and because they are specific to the needs of the parties and their families, eliminate the need to go back to court, sparing expense and emotional damage.
  • The process lays the groundwork for a better future.  Although there is no pain free way to end a relationship, the atmosphere of reduced stress, cooperation, and respect lays the foundation for families to rebuild and allows the parties and their children to thrive. 
Potential Disadvantages:
  • There are no court imposed time constraints—Collaborative cases continue until a settlement is reached.
  • Collaborative Practice may not be appropriate for all cases.  Those involving domestic violence, substance abuse, or mental disabilities may not be able to benefit from this Process.  Similarly, Collaborative is not well suited for those who do not want to actively participate in making decisions toward crafting a settlement.
  • Both parties must be committed to the Collaborative Process in order for it to be effective.
  • Collaborative is a newer process and one the vast majority of the public has not heard of, resulting in a lot of misinformation and misunderstanding about the process. Therefore, it is crucial to meet with a trained professional who can accurately explain its intricacies so the client can make an educated and informed decision as to whether it is the right choice for them.
  • As Collaborative is a fairly new field of law, its regulation is not yet entirely clear.  In order to reap the benefits of the process, it is very important to hire an attorney who has had proper training and will give you and your family the full extent of what the Collaborative Process has to offer.

 

 

Collaborative Divorce Process: What You Can Expect