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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.