Litigation
|
Mediation |
Collaborative Law |
|
You will go before a judge and/or jury
to decide what happens to your assets and your children. |
During the litigation process, you may
be sent to a third party who serves as a neutral authority
trying to guide the disputants to a resolution. If no
settlement is reached, the case goes or returns to court.
The threat of litigation still exists. |
If you do not want to resort to
litigation or threats of court proceedings you may use
Collaborative Law. To do this you must resolve to stay in
the process, which demands courtesy, respect, honesty and
open records. The attorneys representing you and your spouse
reinforce this resolve by agreeing to withdraw if the case
does not settle or if you or your spouse doesn't negotiate
in good faith. |
|
You and your spouse have the right to
litigate any dispute you desire to have a third party decide
on your behalf. |
The court can order you and your
spouse to attend mediation. You may request mediation. But
neither the court nor the mediator can force you to settle. |
Both disputing parties must agree in
writing to follow the Collaborative Law process |
|
You
are powerless and are not in control. A judge controls the
decisions that will affect your family and your finances. |
You
and your spouse should be in control of this process, but
the thought of what will happen in court often drives the
decisions you may make. |
You
are in control of the entire process. You do not need focus
on what would happen in court, you are empowered to focus on
the correct solution to their problems. |
|
Your
focus is on blame and proving the other side wrong and
"winning" your case. |
Your focus is on settlement, but you
are aware that litigation is probable if mediation fails.
So, your decisions may be driven by the lingering threat of
returning to the courtroom battle. Both sides often
continue to focus on proving the other side wrong and on
“winning.”
|
You are not focused on a courtroom
battle or the threat of such litigation. Collaborative
methods lower the barriers to fair negotiation and
contribute to a positive atmosphere. Thereby, you, your
spouse and your respective lawyers and your expert advisers
focus on the settlement that is fairest to all concerned,
including children affected by the decisions. Collaborative
lawyers and expert advisers are trained to work for the best
possible future for the family and their finances. |
|
Through your attorney, you will
exchange information in public and private records may
become public via open court proceedings. This process can
consume a great deal of your time and money. |
Typically you will attend mediation
after exchanging information through the discovery process
in litigation. |
Under their signed binding agreement,
you share information openly in private meetings, thus
avoiding the expensive discovery process. Further, you
do not risk exposing your private information in a public
forum. |
|
You are subjected to inconvenient
court-directed scheduling sets hearings and agendas. |
You determine schedules and agendas by
agreement but may be subject to court deadlines to complete
the process. |
You determine schedules and agendas by
agreement. No deadlines are set by outside parties. You are
in control of the process.
|
|
Most of your time and money is spent
preparing for trial; although you will probably settle your
case before trial out of fear of the unknown result. |
Mediation is a step in the litigation
process. In most circumstances you will spend time and
money preparing for trial before going to mediation. |
All of
the of your time and money is spent finding solutions
and resolution. |
|
You and your spouse each hires his/her
separate experts, as needed or wanted, to try to prove the
other side wrong. |
You or your spouse may use reports of
experts hired for litigation to bolster each side’s
respective positions and to tear down the other side. |
You and your spouse must agree to hire
one set of experts, as needed or wanted, to assist you in
making the best decisions for all concerned. Sometimes
mental health experts are also hired to deal with underlying
problems in the family that the court system can never
solve. |
|
Your private information may become
public record. You may have to release information
about your family, yourself and your finances to the other
side in a public manner. Your spouse's experts may use the
information as part of your spouse's attorneys’ strategies
to advocate positions in open court. |
Your information may or may not be
kept private. Information shared in mediation is
confidential, but the parties have probably already
exchanged records in the public litigation arena. If so,
then the information may already be public. |
There is no public phase of the
process until the judge issues final approval of settlement.
You and your spouse share information with each other and
their experts in a confidential process to help both of you
evaluate assets, facts, debts and other data. The process
aims to reach a fair and equitable settlement, including
distribution of assets. In the rare instances that the
Collaborative process fails, experts used in the process
cannot be used in litigation. |
