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The Three Doors of Resolution: How to Effectively Navigate Your Options
When litigants enter into a family law dispute many clients are daunted by the sheer number of different ways they could pursue and resolve their case. Depending on the interests of the parties, the path they could take could widely differ. After all, how does a party know they are choosing the best method of resolution? It is important that Lawyer and Client take the time to understand their options fully. I like to compare the two main forms of resolution used in my own office to two doors in the same winding hallway.
The traditional approach (or door) is litigation. In this room, the possibility of going to Court is always there. Positions are taken by the lawyers and parties based on what they believe will or could happen in Court. This is a subjective judgment and you can get widely divergent views on what a Judge would decide after a contested hearing. It can be that the lawyers or parties have a more aggressive mindset in this room. The focus is likely to be on maximizing the client’s gain. Sometimes the interests of the children are not given due consideration and the lawyer’s main goal is to maximize what the client’s expressed goal. A responsible lawyer will challenge unreasonable goals expressed by the client, but this does not always happen. Not all cases in this room lead to contested hearings. It depends on how the lawyers and parties pursue the issue and how reasonable people are in trying to resolve the case. A high percentage of the cases are settled – but only after a lot of time has been spent doing informal or formal discovery and protracted negotiations. Some of these cases are not settled until right before the hearing. Some of these cases can really get out of hand and have a big impact on the family – both financially and emotionally. If the case is fairly straightforward and the parties and lawyers are reasonable, then it can be a decent experience for the parties. However, if it turns into a more contested litigation case, then it has the potential to be really devastating to the family and parties. Litigation may be necessary in some case and may even be preferable to the other options, but the client should take the time to discuss their case with an experienced lawyer so they can make an informed decision, based on the unique facts in their case.
An alternative door if you will involve a process called Collaborative Law. This is a process where the parties couples give up their ability to litigate/take their case to court and obtain a ruling from a Judge. Rather, the case is handled via a series of meetings (usually 3 to 6 meetings) with the parties, their lawyers, and possibly some other neutral experts as needed. The benefits of collaborative law include its structured method of resolution. No one is scheduling court hearings at times when a party is not available or when it might not be so convenient. Also, the process is confidential. There are no public hearings. Generally, what is said and done in the process is not subject to being disclosed to others outside the process. This allows the clients to speak more freely in the meetings. Furthermore, without the threat of litigation and contested hearings looming in the room, the discussions and negotiations have a different tone and posture. The linchpin of this process is the withdrawal provision. If the case does not settle, the lawyers have to withdraw and the clients must get new lawyers in the litigation process. This is done for several reasons. One is to change the way people negotiate since there is no threat of Court. Another is to give people an incentive to stay with it and get the case resolved or settled. Also, since it is a confidential process, we do not want the lawyers being privy to all the information and then proceeding with litigation once the case ends. The vast majority of cases in the collaborative law process settle. My experience is well over 90%. Again, it is best to sit down with a lawyer who is experienced in the collaborative law process and allow them to help you assess whether this process would be best for you and your family. Not all lawyers have experience with the process, so you need to ask questions designed to better understand how many collaborative cases the lawyer has handled and whether a significant portion has settled successfully.
Whichever door you decide to take, The Law Office of Tim Whitten is committed to providing the counsel to help you effectively navigate your family law cases. Reach out to understand your options today.
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