Comparing the Process: Litigation, Mediation, & Collaboration

May 22, 2018  By  Admin
process

processThe truth is that conflict, particularly when adversarial and drawn out, is financially, emotionally, and relationally expensive. Mediation and collaboration aim, in differing ways, to address the deficiencies of the litigation model for divorce and resolve disputes through cooperation rather than conflict. However, none of these processes is a “one size fits all” solution for every divorce.

Who controls the process?

In litigation, the process is controlled largely by the judicial system. This means that the judge makes the rulings, court docket controls schedules, and attorneys make many of the strategic and procedural decisions.

For this reason, the timetable and outcomes in litigation can be highly unpredictable. In mediation and collaboration, on the other hand, the parties are encouraged to control the process to the greatest extent possible.

How adversarial is the process?

Litigation can sometimes be friendly, and most often results in out-of-court agreements that settle the disagreements between the parties. However, in most cases the parties start out in an adversarial mode and remain so. The litigation process often serves to intensify, or at least not facilitate a diminishment, the parties’ adversarial posture.

In mediation, the parties are encouraged to move away from adversarial posturing, so they can reach mutually acceptable outcomes, but most often there is not a support system to facilitate this.

In the team-based, multi-disciplinary collaborative process, parties are helped to deal with their anger, emotions, and adversarial tendencies, so that it is their highest and best selves that they bring to the negotiation, and so that they will make the best and most rational decisions.

What is the timetable for the process?

Litigation runs on the timetable of the court system and the attorneys. This almost inevitably makes litigation a lengthy and unpredictable (and, therefore, costly) process.

The mediation and collaboration processes take place almost entirely outside the court system. Therefore, the parties and their mediator or collaborative professional team can control the timetable. Even mediation and collaboration take hard work and thus take time. However, mediation and collaboration are almost invariably more efficient and cost-effective than litigation because of the control the parties can exercise over the timetable.

How are experts used?

In litigated cases, each party typically hires outside professional experts, who can include forensic accountants, mental health professionals, real estate appraisers, business valuation consultants, and others depending on the case. The experts, then square off against each other, and it is up to court to decide who to believe and what the outcome will be.

For the most part, in mediation, experts are neutral and only involved at the mutual behest of the parties. Oftentimes, parties in mediation can reach agreement without the aid of experts.

In multi-disciplinary collaborative cases, each party has the benefit of his/her collaborative attorney and collaborative coach, and the parties jointly have the benefit of a collaborative financial professional and, where children are involved, and collaborative child specialist.

What role do lawyers play?

In litigated cases, attorneys typically control the case on behalf of their clients. The attorneys, as legal representatives of their clients, deal with the judge and the court schedule, manage the use of outside experts, communicate with the opposing attorney, and frequently serve as communications “go-betweens” for the parties themselves.

In mediation, the mediator is usually (but not always) an attorney and is always neutral. Optimally, the mediated agreements of the parties will be reviewed by their independent legal counsel before being finalized by agreement and the entry of court orders.

In collaboration, the attorneys and clients sign an agreement up front to seek mutually acceptable outcomes that meet the needs of both parties, and work with the rest of the collaborative team to reach mutually acceptable outcomes.

How public is the process?

Litigated cases can be very public. Courtrooms are open forums, and documents filed in court clerk’s offices are typically available to anyone who wishes to look at them. In some instances, court decisions are published and available online or in libraries.

Mediation and collaboration are essentially private processes, although in divorce proceedings the final agreements of the parties typically are approved by the court and filed of record. Nevertheless, in both mediated and collaborative cases, the decisions are made by the parties rather than a judge, and court documents can be fashioned by the parties and their legal counsel so that as little sensitive information as possible becomes part of the public record.

How do the parties communicate and exchange information?

Frequently, in litigation the parties have little direct communication with each other, particularly if they are in a highly adversarial mode. The rules of procedure in litigated cases provide the attorneys with the means by which to compel the other side to provide information (for example, through depositions, interrogatories, subpoenas, and on the witness stand). In many litigated cases, the parties communicate almost entirely through their attorneys, although that can vary from case to case.

While when it comes to mediated and collaborative cases, communication between parties is encouraged and expected, and parties are expected to provide all relevant information to each other voluntarily. In collaborative cases, the parties have attorneys, coaches, and financial and child specialists who encourage and facilitate healthy communication and transparency in the exchange of all relevant information, and the parties commit up front to be respectful, open, and transparent with each other.

What courtroom involvement is there?

Litigated cases transpire both inside and outside the courtroom. Despite many clients’ demands for their “day in court”, however, the vast majority of cases eventually settle out of court, and the court ends up blessing the settlement by the entry of rulings mutually agreed to by the parties. The difficulty in litigation is getting to the settlement point, which can be an arduous, expensive, time consuming, and emotionally exhausting process.

Mediation and collaboration begin with the premise that the parties can reach mutually agreeable resolutions of the issues in question.

In mediation, the neutral mediator is there to facilitate mutually agreeable outcomes.

In collaboration, there is a team of professionals who are focused on helping the parties overcome the emotional, financial, and legal barriers that can prevent them from reaching solutions that work for everyone involved. The collaborative process is intended both to address present issues and to assist the parties in building their own pathways to the lives that lie ahead for them.

Copyright Laurence M. Hamric, J.D., M.Div. – Used by Permission

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