In the process of a divorce or case involving family law, you will often find that there are many different routes available to you. As a trained mediator, litigator, collaborative law attorney and legal professional, I have had experience with all of these varying paths, and have noted that what may be the ideal course of action for one couple or individual, may not be the right direction for another. Neither mediation, nor collaboration, litigation nor negotiation will be the worst, or best choice in all cases. The choice of which approach to use will depend on a deep consideration of your personal circumstances, your individual preferences, and your legal needs.
The first, and perhaps most well-known option for divorces to consider, is that of litigation. Litigation is the term that is used to describe the proceedings that may be initiated by two opposing parties in an effort to defend or enforce a given legal right. Cases can settle at any time before or during a trial, but ultimately litigation will be decided by a court after the argument has been heard and decided by a judge or jury on the issue of grounds only. The process of initiating litigation proceedings is voluntary for the plaintiff, but mandatory for the defendant once selected and served, and the formality of the case typically surrounds a formal process bound by a number of crucial rules.
In a divorce litigation procedure, the judge and jury (only on the issue of grounds if a jury trial is selected on that issue) will make the final, legal and binding decision about what actions are to take place following a hearing. This means that the parties involved in litigation will lose any control over the final outcome that is presented to them. However, in some cases, it is possible to appeal the decision that has been given. It is difficult to appeal a knowing, voluntary, and intelligent settlement whether by divorce mediation, collaborative law or a negotiated settlement.
One of the best things about litigation is that a court provides a strict timetable, ensuring that the case continues to move forward if one party is attempting to delay proceedings. What’s more, the court can enforce an individual’s compliance with directions, and take emergency steps in defending the welfare of children and parties where necessary. Divorce litigation also offers a distinct and clear outcome for parties struggling to reach a decision themselves. However, this process can also enhance ill-will between parties, and create difficulties between parents who are attempting to work together to care for children after the case concludes. Litigation is usually the most expensive legal process.
Mediation can be the fastest and least expensive method available to resolve family disputes and/or make arrangements about finances, children, or personal matters following a divorce. The aim of divorce mediation is to come to a solution and make arrangements for the future, which can be useful when helping parents to communicate about the welfare of their children.
The initiation of the divorce mediation process is voluntary for both parties involved, unless they have been ordered to participate by statute, contract or court order. The parties involved in the case retain their decision-making authority, and the trained mediators simply assist in helping them approach a mutually agreeable solution. The formality of the process is very flexible and informal, which can be adapted according to the requirements of the parties involved.
Similarly to collaborative law, in a mediation case the parties involved will set the agenda and control the outcome, while maintaining an open form of communication with each other. The process of mediation focuses on creating a better future, and solutions are decided by the parties involved, rather than a judge or jury. However, mediation will not be possible in all circumstances, as it relies on both parties’ good faith to work, and you can and should seek or may feel you need independent legal advice alongside divorce mediation. This is usually accomplished by using review attorneys.
The next process to consider is collaborative law. In simple terms, collaborative law provides a method of resolving disputes between parties by removing the matter from the confines of the litigious court setting, and treating the process as a way to find and solve problems. As part of the collaborative law method, both parties will be expected to retain separate attorneys who will assist them in settling the dispute. Other collaboratively trained professionals such as a coach who is a mental health professional, financial professional, and child specialist are typically enlisted as part of the collaborative team. Each party within a collaborative law process will be expected to sign a contractual agreement including terms such as the disclosure of documents, insulating children, sharing experts and so on.
The initiation of a collaborative law process is voluntary for both parties, and each party will retain their decision-making authorities throughout the case. The attorneys and other professionals present in these proceedings simply act as professional assistance to help guide the parties towards reaching a mutually agreeable solution. The formality of a collaborative law case is quite different to litigation, as the process is very flexible and informal, which can often be adapted to meet the specific needs of those involved within the process. Collaborative law is private, involving only the parties, their attorneys and the other professionals on the team, and a solution is decided by the parties involved.
There are many benefits to collaborative law. Firstly, the parties involved set the agenda and control the outcome, while maintaining healthy communication and good will. This is especially relevant when children are involved, as it can help nurture a healthy relationship between parents. The cost of collaborative law can vary according to time needed and hourly fees, however a commitment to out-of-court negotiations allows for a more open approach. On the other hand, in some cases some parties will not feel comfortable being in the same room as each other, and the process of collaborative law relies on both parties’ good faith to work.
A negotiated settlement in a divorce is another form of legal process that takes place outside of court but when each side also has their own attorneys. The idea behind a negotiated agreement is that a settlement is reached by two disputing parties, between themselves and their attorneys, usually without the assistance of a formal mediator or judge.
The initiation of this procedure is typically started with the lawyer of one party drafting a resolution that they believe to be fair given the circumstances. That proposed resolution is then shared with the other lawyer and party, and then could be discussed at group meetings. After negotiating the proposals given, a solution can be reached between the two parties involved that is acceptable to both with the help of their attorneys. The difference between this process and mediation and collaborative law is that it is still operating under the adversarial model like litigation. Negotiated settlements can be ongoing while litigation is also proceeding.
This can be a far less stressful way of approaching legal matters than going to court and presenting your case in front of a judge. Similarly to divorce mediation and collaborative law, it fosters communication between two parties, although typically the attorneys will do most of the talking. Unfortunately, like any other aspect of family law, negotiated settlements are not the right course of action for everyone.
As always, please see our webpages and blog entries for more information on divorce, family law, mediation, collaborative law, negotiated settlements and litigation. Call to talk about your free initial consultation, it would be our pleasure to speak with you.