Alternatives to Litigation
Alternatives to Litigation: Mediation
Mediation is less stressful and one of the alternatives to litigation. Mediation’s goal is for two sides to find consensus, or common ground, to resolve the dispute. It allows the two sides to be a part of the solution, with an active role in creating the solution. Otherwise the judge, who is a stranger, will decide these important issues with limited information, and virtually no interaction with the parties.
As a practical matter, the parties generally end up with more money in the bank, due to lower attorney fees. More importantly, they now have emotional peace of mind, because the case is no longer looming over their daily lives.
All negotiations in mediation are confidential. Negotiations cannot be used in later stages of litigation if the mediation process is not successful. If the mediation process is successful, the agreement is presented to the judge for approval and is filed as a Consent Decree. Portions of the agreement, such as property division and child support, can be placed in a separate document that is not filed in the public record for purposes of privacy.
Alternatives to Litigation: Collaborative Divorce
If you are reading about collaborative law on our website, chances are that you have read or heard about it before now. The collaborative method is widely accepted on the east and west coasts of the United States, and is becoming one of the more common alternatives to litigation in the rest of the country, including Oklahoma. The Oklahoma Association of Collaborative Professionals (OACP) is the state’s professional organization.
The most common use of collaborative law is in divorce and custody matters. In a collaborative divorce, the spouses agree to work together (hence the word “collaborate”) to find the best solutions for their situation. Often, the solution is a result the judge could not order in a traditional court case. The collaborative method for a divorce is generally not recommended if domestic violence exists in the marriage, or if one of the spouses suffers from substance abuse or mental illness. Mediation may be a practical alternative to the collaborative method, if the domestic abuse victim is adequately protected during the process.
The spouses sign a written document, an agreement, to avoid taking their case to the courthouse. The “four-way agreement” involves the spouses and their lawyers. The agreement includes the promise to treat one another with respect, and to have open lines of communication. They agree to openly share all of their financial information.
The spouses are encouraged to utilize a mental health professional (often called a “coach”) during the collaborative process. If the couple has children, the parents agree that issues relating to the children have the highest priority. They talk in terms of parenting time and financial goals rather than the traditional “hot button” terms of custody and support.
When it is appropriate, a mental health professional is included in the dialogue, to provide the perspective for the children’s needs.
A neutral financial professional is often involved in the process. The couple can explore options for structuring the division of the marital estate, including long-term retirement goals and tax consequences that minimize financial loss to either spouse. The goal is to preserve the assets of the marriage, so both spouses can benefit from it and adequately provide for their children.
The only documents generally filed in a collaborative divorce are the initial documents to begin the divorce case, and the final document, which is usually a Consent Decree. The agreement of the parties may also be set out in a separate settlement document, which is not filed in the court record, and remains confidential.
Alternatives to Litigation: Parenting Coordinator
Sometimes divorcing parents cannot agree on anything relating to their child. In those instances, either the trial judge, or the parents themselves, will include a Parenting Coordinator (“PC”) as part of the divorce decree. If a trial judge appoints a PC, the judge must make a finding that the case is a high-conflict case.
The PC can be an attorney or a mental health professional. The parents pay for the PC’s time with them, either sharing the cost equally or according to their income percentages for child support.
The PC’s role is limited to dealing with parenting issues, e.g., visitation exchange, scheduling the child’s sports activities or revising an access schedule. The main benefit of a PC is avoiding yet another round in the court system when the parents can’t reach an agreement. The PC works with both parents to promptly address issues, without the delay and financial costs of yet another court hearing.