Process Options for Dispute Resolution
If you are facing important legal issues which need to be resolved, we believe that it is very important for you to know about the different process options which are available. You do have a choice regarding how to proceed with your case, but you need the information necessary to make that choice.
Historically in America, the process we have used to resolve legal issues has been our traditional court system. That system, of course, is an adversarial one in which the parties, either with or without the help of attorneys, must be prepared to present evidence and argument regarding contested issues to a judge or other judicial official, with the judge then making a decision which resolves the dispute. Parties in the traditional court system are certainly free to negotiate, and many do so and are able to reach a settlement agreement. However, any negotiation in this system must necessarily take place in the context of the adversarial model it employs. By definition, all negotiation in this model occurs against the backdrop of what will occur if agreement is not reached, namely a contested hearing or trial with a decision imposed by a judge.
There is nothing inherently wrong with our traditional court system, and you may ultimately decide it is the best dispute resolution process option for you. On the other hand, however, you may conclude that it is not. As with many other things in life, "one size does not fit all" when it comes to the resolution of legal issues. The information below is an attempt to help you begin to understand the major process options which are available to you.
When considering the different process options for resolving legal
issues, it can be helpful to imagine them as points along a continuum from
left to right, as depicted below.
<
< < <
< Process
Options Continuum
> > > >
>
“pro se” --- mediation --- collaborative family law --- traditional
litigation
These different process options vary in a number of ways, including the
amount of court involvement, the degree of professional assistance, and the
associated cost, among other factors. When viewed as a continuum, the left
end would represent the least amount of professional assistance, court
involvement, cost, etc., with each factor generally tending to increase the
farther you move toward the right.
Each of the specific points identified on the dispute resolution process
options continuum will be discussed further below.
The Traditional Process
In a divorce or other family law case in which the parties use the
traditional legal process, both parties usually hire attorneys. The
attorneys help to educate and counsel their clients about legal issues,
provide legal advice, and represent the positions of their client in
negotiations and court hearings. This model is an adversarial process in
which each attorney advocates (argues in favor of) positions based on the
needs/wants and perspective of their client. The parties communicate through
their attorneys, rather than directly with one another, regarding their
positions, proposals and counter-proposals on the issues in their divorce.
The process may involve the use of formal legal procedures, known as
"discovery," to secure financial and other relevant information. This may
include the use of depositions (a formal taking of testimony before a court
reporter prior to a trial or hearing) and the subpoenaing of documents or
other material believed to be relevant to the issues. Each party may hire
experts to support their positions. Experts may include psychologists, real
estate and personal property appraisers, business valuation specialists,
accountants, and other investigators. If the parties dispute the legal
custody or physical placement schedule for their children, the court will
appoint a third attorney, called a guardian ad litem, to participate in the
case as an advocate for the "best interests" of the children. Ultimately, if
agreements are not reached, parties and other witnesses testify before a
judge who makes decisions on each disputed issue. Most cases using the
traditional litigation approach are nonetheless ultimately resolved by a
process of negotiated settlement, but that negotiation process takes place
in the context of the alternative - a contested hearing resulting in an
imposed decision by a judge or family court commissioner. Traditional
litigation offers some advantages in that the rules and procedures are well
developed and certain, and that various methods are available to compel
cooperation and compliance from reluctant parties. However, many observers
of the legal process believe that the traditional litigation process, which
was primarily developed to resolve non-family disputes such as business
litigation, negligence suits, contract disputes and other matters, is often
extremely stressful and traumatic for people going through a difficult
experience like a divorce or custody dispute. The traditional litigation
process can also often be expensive and time consuming. In part to address
these concerns, a variety of other methods have emerged as alternative
options for people who need to resolve divorce and other family law matters.
Some of those other options are discussed below.
The “Pro Se” Approach
Pro Se is a Latin term which can be translated as “for myself.” Using the
“Pro Se” model, the parties to a divorce or other family law dispute do not
hire attorneys or other dispute resolution professionals. Instead, they
resolve the matter themselves. They proceed on their own to draft and file
the necessary court documents including the summons and petition, financial
disclosure statements, any motions, the marital settlement agreement, if
any, and the final judgment divorce. In some areas, pro se form kits are
available at the courthouse. Some individuals and firms also market and sell
“forms packets” and other general information intended to be used by parties
acting on their own to resolve their cases, however such information cannot
include legal advice since it is a criminal act to provide legal advice
without a license to practice law. In a “Pro Se” case, the parties must
either work out an agreement together, or present their legal issues to the
court. The parties have to be prepared to act as their own lawyers. If any
one or more issues are not fully agreed upon, that means they must call
witnesses, ask questions of the opposing party and tell the court (with
reference to applicable legal provisions if necessary) why their request for
specific order they are requesting should be granted. Whether or not a
complete agreement is reached, the parties must either educate themselves as
to the meaning and effect of the various legal provisions which apply to
their case or be prepared to accept the consequences of their lack of
knowledge.
Mediation
In mediation, the parties hire a neutral third party to assist them in
reaching agreements. The mediator can provide information about the legal
process and guide a discussion to help resolve issues. The mediator may or
may not be a lawyer, but in any event the mediator cannot and does not
represent either party, and cannot provide legal advice to either. Mediation
may occur with parties who have hired attorneys or parties who are not
represented by attorneys. The parties communicate with one another directly
in the presence of the mediator. The goal of mediation is to allow parties
to reach agreements that meet the needs of both parties and their children
without the financial and emotional cost of a court battle. If the parties
proceed in mediation without attorneys, they must still prepare all the
required forms for the court, though a mediator may help prepare forms for
the parties. Wisconsin law requires that parties to a family law case in
which there is a dispute about custody or physical placement of a child must
participate in mediation before proceeding to any contested hearings about
the disputed issues. This is a specialized form of mediation and is
typically provided by an agency affiliated with the circuit court in each
county. However, it is important to keep in mind that, more broadly,
mediation can be used to resolve any issue presented in a family law case.
Parties wishing to use mediation to address issues other than custody and
physical placement of a child would simply need to locate an attorney or
other professional who provides mediation services privately.
A New Option -
Collaborative Family Law
The collaborate family law process is a relatively new method of dispute
resolution. In collaborative family law, both parties to a divorce or other
family law case hire specially trained collaborative lawyers, and both
parties and both attorneys agree formally not to submit any issues to a
judge or court commissioner for a contested decision. Instead, the parties
and their attorneys together use a process known as interest-based
negotiation and creative problem solving to find “win-win” compromises which
all parties believe represent the optimal outcome, taking into consideration
the goals and needs of both parties and their children, if any. The
collaborative family law process involves adherence by all involved to a set
of principles and guidelines which emphasize a cooperative, non-adversarial
approach based on mutual respect and good faith, with the shared, common
goal of reaching a fair settlement of all issues. Part of these principles
includes a commitment not to go to court, and while that option remains
available to both parties, in order to invoke it the collaborative process
must be terminated, in which event both attorneys must withdraw and each
party must retain new lawyers for traditional litigation. In collaborative
family law, instead of court hearings and other traditional processes, the
parties and attorneys communicate and negotiate directly with one another in
structured four way settlement meetings called “collaborative conferences.”
In lieu of the formal “discovery” techniques described in the section on
traditional litigation, in collaborative family law the parties agree
instead to openly disclose and voluntarily exchange all financial and other
relevant information. If required, experts are brought into the process, but
instead of each party retaining such experts as “hired guns” to present
favorable testimony in court, the parties instead jointly retain a single
expert as a neutral to render an opinion which is as objective and accurate
as possible. In addition, collaborative divorce may involve a team approach,
which can present significant advantages in reaching an efficient, optimal
outcome. Possible team members include mental health professionals who can
serve as “coaches” to assist the parties in keeping the collaborative
process effective and productive, child psychologists or counselors who
sometimes serve as specialists to assist in understanding and helping
promote the best interest of any children involved, and financial advisors.
The collaborative family law process encourages creative problem solving,
“win-win” negotiations, and resolutions that meet the needs of all family
members. The growing experience with collaborative family law, both in
Wisconsin, other parts of the United States and internationally, indicates
that it can often produce better results for children, greater satisfaction
of the parties, and parties who are less likely to return to litigate future
issues in court. More importantly, the parties are directly involved in the
process and retain control over the outcome. For more information the
collaborative law process, see the site maintained by Collaborative
Professionals of Northeast Wisconsin, Inc. at
www.NEWCollab.com or the site of the Collaborative
Family Law Council of Wisconsin at
www.collabdivorce.com.
What Is the “Best” Option?
It should be emphasized again that there is no one “right way” to resolve a
divorce or other family law matter. The option which is best for you is the
one which best suits your needs and factual circumstances.
If it would be helpful to you, we offer a brief initial consultation at no cost or obligation. In an initial consultation, which can be done in person at our office or over the telephone, we can help to identify some of the legal issues which may be raised by your factual circumstances and provide general information to help you to decide which option is best for you. If you would like to schedule an initial consultation, please feel free to call us.