Strategies and Options
THE COLLABORATIVE APPROACH
The Collaborative Process is a voluntary alternative dispute resolution process in which the parties, not the Court, are in control of their case. The focus of the Collaborative Process is to reach a comprehensive settlement agreement that focuses on meeting the goals of all parties involved. If you opt into the Collaborative Process, you opt out of the court system which can be expensive, slow and unpredictable.
At the beginning of the Collaborative Process, you and the other party retain trained attorneys who can assist in navigating the Collaborative Process. Once that is accomplished, the parties and their attorneys decide whether it’s necessary to retain other collaboratively trained professionals to assist the parties, such as forensic accountants, mental health professionals, parenting experts and financial planners. Meetings are then scheduled to address the parties’ issues. Everyone uses a “team” approach to resolve the various aspects of the case. The Collaborative Process is completely confidential and can resolve a case more quickly than the legal system. If the parties reach an impasse, the collaborative attorneys must withdraw to protect the parties’ confidentiality. Then new attorneys will be retained for litigation. If a settlement is reached, the Court will only be advised that the parties have reached a settlement and request that it be ratified by the Court. This process avoids submitting a case to a judge, who may or may not understand the intricacies of your family and your unique situation.
Like the Collaborative Process, mediation is an alternative dispute resolution process and is confidential. However, unlike the Collaborative Process, mediation is required by the Court in most contested family law cases and usually takes place after the parties have exchanged financial documents. Mediation typically takes place in either a half-day or full-day with the parties separated in two different rooms. The mediator is a neutral third party who cannot provide legal advice nor advocate for one party or another. This is why retaining an attorney to attend mediation is a wise decision so you know your legal rights prior to entering into a mediated settlement agreement.
During mediation, the attorney’s role is to advise the client of his or her rights under the law. This knowledge can assist the client in making an informed decision whether to settle the case or move forward with litigation. If an agreement is reached, usually the mediator drafts a settlement agreement. An attorney can then look the contract over to make sure all requirements are met and that a client’s rights are protected. Once an agreement is signed, it can be filed with the Court. If an agreement cannot be reached, the mediator advises the Court that the parties have reached an impasse (without disclosing the reason) and the parties can then seek relief directly from the Court. Medication can be a cost-effective way to reach a disputed resolution in a family law matter.
When parties cannot agree on how to resolve their case, the parties must submit their disagreements to the judge for a decision. In family law, it is an attorney’s role to present to the Court the evidence that best supports the client’s position. The attorney also helps the client understand the Court’s deadlines and how to effectively navigate the legal system. If the parties cannot agree on an issue, the Court applies the law to the facts of their particular case. Litigation can be expensive and uncertain. Because the Court has broad discretion on issues such as time spent with their child, alimony or property distribution, it is difficult to predict how a judge will resolve a case. This is why many clients choose to settle their cases outside of Court. However, sometimes litigation cannot be avoided and is needed to settle issues, especially when one of the parties is taking an untenable position.