Not everyone can settle their differences without the intervention of the court or the input of a judge. Litigation can be a client’s first choice, or a choice of last resort. Litigation can also be used in parallel with some other processes such as mediation. There is no “one size fits all” when it comes to deciding which process best suits your needs.
Litigation is by nature adversarial, with each party advocating for their separate interests. However, we have found that the most satisfactory approach is to search for common ground and craft reasonable, realistic solutions to which both parties can agree. If an agreement cannot be accomplished, these reasonable and realistic solutions will often win in Court.
The Connecticut dissolution process takes a minimum of about 4 months. in a complicated case it may take much longer. The court sets two dates when a complaint is filed. The first is the “return date,” which is at least four weeks away to give the defendant a chance to answer the complaint, file a cross complaint. The second date is the “case management date,” which is at least 90 days after the return date and is the earliest date a divorce can be finalized. The court takes no action before the case management date so that the spouses have some time to settle issues out of court. Couples with children must also complete a court-approved parenting education program within 60 days of the return date.
Neither mediation nor collaboration is necessarily going to be the best or worst choice in all cases. Which approach to use is determined by your unique circumstances and your individual preferences.
The key features of mediation are:
- neutral person (mediator) helps you negotiate
- mediator has no power to decide the case
- informal
- flexible
- efficient—less time consuming than litigation, and
- inexpensive—compared to litigation.
The important features of collaborative divorce are:
- spouses are represented by collaborative attorneys
- spouses and attorneys sign a “no court” agreement
- spouses and attorneys negotiate in “four-way” meetings
- attorneys may recommend involving collaborative professionals
- informal
- flexible
- more efficient than litigation, and
- less expensive than litigation.
Mediation can be considered an alternative to litigation, violence or self help. Mediation is defined as a process of dispute settlement in which a third party neutral helps the parties negotiate a voluntary resolution of their differences.
It is difficult to predict with precision how long your mediation will take and how much your mediation will cost. Generally, for divorce, business and organizational matters, we will meet between two and six times for approximately 1 to 1.5 hours each time. Some matters may require more meetings. Regarding cost, I utilize a sliding fee schedule and base my fee on how complex your matter is, as well as how agreeable the participants are. The goal here is to make mediation affordable for everyone. I will be as specific as possible regarding your actual fee once I have a better understanding of your situation.
Fantastic! The first thing that we will do in mediation is to identify what you already agree on. We will use those points of agreement as a foundation for your overall agreement. Sometimes, the concepts that make sense to you on certain easy issues can be applied to resolve other issues as well. We will want to be sure that your agreement is well informed and that you are aware of the many issues that you may want to consider. What is included in your final agreement is up to you. My goal is to support your well informed decision-making.
That depends entirely on you. Generally, the mediation success rate is approximately 90 percent. This high success rate is due in most part to the efforts of highly motivated individuals who are eager to control their own destiny by reaching a mutually satisfactory agreement.
In mediation, all discussions and materials, with very few exceptions, are strictly confidential. Connecticut law provides that if no mediated agreement is reached, evidence of mediation discussions, mediation materials and any draft mediation resolutions will not be admissible in any court or other adversarial proceeding. In other words, your dispute can proceed with litigation as though the mediation never took place.
Responsibility for payment of mediation fees is an issue to be decided by the mediation participants. Participants are encouraged to consider sharing fees to some extent so that all will benefit from expeditious and economic resolution.
In some mediation discussions, attorneys are present and represent the parties. In other mediation discussions, attorneys are not present, but are available as an outside resource for consultation. The participants need to decide how actively involved, if at all, they would like legal counsel to be. As a mediator, I am ethically bound, at a minimum, to advise you to have any mediated settlement agreement reviewed by your own individual legal counsel prior to your signing that agreement. In practice, I have found that it works best for mediating parties to obtain legal advice throughout the mediation process. This legal advice may be best obtained early in the mediation, by legal counsels review of a near final draft agreement, and by counsels review of the final agreement. This minimum level of consultation will, I suggest, dramatically elevate your comfort and confidence in the final agreement.
It may make sense, in a particular case, for mediation participants to retain mutually trusted experts. For example, participants may desire a trusted valuation of real property, personal property or a business. It is also not uncommon for mediating parties to choose to jointly consult with an accountant or tax expert. Mediation participants with parenting concerns may find it beneficial to obtain the thoughts and recommendations of a trusted child psychologist.
Perhaps the most important thing you can do to ensure a satisfying and successful mediation experience is to prepare for the mediation discussions by clarifying. 1) your desired outcomes 2) your best alternative if the mediation fails and 3) the concepts of fairness that make sense to you. When you commit yourself to listen to the other party’s point of view, even when you don’t agree with it, you will be able to develop options that meet both of your needs.