Litigation, Mediation, Collaboration, Oh My!

Choose Your Adventure

Probably once a week, I’ll get a call from someone looking for help with a divorce or custody case and, well, they’re lost. With good reason – no one plans for a legal case. While there are definitely people out there who are frequent flyers in the legal system, the majority of our new client calls are from people who never expected to be here. That makes it really easy to get lost on how to proceed, or even if you should proceed at all!

Whether or not you’re ready to actually file something is a personal decision, and something we’ll probably cover in a future article. Today, we’re going to assume that you’ve come to that point of irreconcilable difference in your relationship and need something in place to help dictate the terms of things going forward. Regardless of your case – if you have a divorce dispute or a custody dispute – this article is going to go over the different options that you have in moving forward. Most people focus only on litigating their case, but there are alternatives, and we’ll discuss the pros and cons of each.

JUST TALK IT OUT

This is the first and most obvious option. If you’re here, reading this, I assume you’re probably past this point but it still merits going over because of how important it is. So, I’m going to open with a very definitive statement:

There is no obligation or demand that you go to court and argue a case for your divorce. There is no obligation or demand that you go to court and argue a case for your custody.

In the case of a divorce, you will need to make a filing at some point because the only way that you can formally dissolve the marriage is to get a judgment of divorce. Even if you and your spouse are just willing to part ways and don’t want to deal with the headache – making a formal split will save headaches down the line for both of you. Don’t forget – even though you both may have agreed to check out of the relationship and part ways amicably, if you’re still married, the law will still take precedence on things like automatic beneficiary designations if you happen to pass away. But I digress –

If you’re going through a divorce, there is nothing stopping you from working out all the terms directly with your spouse. In fact, it’s probably encouraged if for no other reason than agreements that are crafted on more amicable terms are more likely to last and see less modification in the future. Another plus is that you and your spouse will save a lot of money in legal fees. Even the most cost-effective divorce process that requires the active involvement of a professional in the Family Law space can cost a few thousand dollars.

If you have a custody case, you don’t have to go to court at all. In fact, the legal system really doesn’t want you to. Resolution of a custody complaint through the legal system is going to be focused on the same things that a successful co-parenting relationship would focus on to begin with: the best interest of the kids, supporting the kids with financial means (have to pay for child care somehow!), and the nurturing of relationships with both parents. There are definitely challenges with families that don’t align with the “traditional” image of a family, where there are two parents who are married. To deal with that, there are all sorts of tools and resources out there that will help you and the other parent successfully navigate child-rearing. And just like with a divorce case – the savings are substantial. You can spend thousands of dollars fighting a custody case, or you can put that money aside for a college fund.

THERE ARE RISKS GOING IT ALONE

Cost savings and a potentially agreeable outcomes in the short term are huge pluses, but there are some big drawbacks with “just talking it out.”

The first is the pitfalls around language. In a divorce, your separation agreement will be enforced as written. So, if you were to put vague, or otherwise ambiguous terms in the agreement, it can cause conflict down the road if moods change and your amicable relationship with your ex sours. As an example, consider the word “reasonable.” As in, “reasonable parenting time.” To you, reasonable might be every weekend, every opportunity your spouse isn’t available to care for the kids, and dinners multiple times a week. And your soon-to-be-ex might agree when they signed the agreement!

However, how does “reasonable” change if one parent moves away, especially if they’re the custodial parent? What happens if you fall into a relationship with their best friend, and they suddenly feel spiteful? What does “reasonable” mean then? DIY-crafted agreements are often loaded with issues like this, and they’re very easy traps to fall into.

In Massachusetts custody cases specifically, the father doesn’t have any parental rights regarding visitation and custody until formally established by a court order. Yes, it’s unfair. No, you can’t change it (without a court order). So, if you have a rocky relationship with the custodial parent, there is nothing stopping them from holding your child over your head to try and get what they want.

MEDIATION

Just a step above talking it out, we have mediation. An often-overlooked avenue of conflict resolution that gets a bad rap because of its association with being forced upon you if a company does you wrong. For domestic relations, it’s actually pretty helpful!

This is also the first type of dispute resolution that will actively engage a professional (not always a bar-approved attorney) in your case, but that comes with a lot of benefits. First, you get at least some insight and knowledge as to what is what in the legal world. While a mediator is not there to personally represent you or the opposing party, they are there to make sure you avoid mistakes like language traps. On top of that, a good mediator will be able to help the parties work through areas of contention and conflict. That is the entirety of their job description – mediating the conflict to achieve an agreement.

At this level, you’re still working collaboratively and directly with the opposing party. You can certainly get an attorney to give you some extra advice on what your best interests are, but it’s probably best to leave them at home and just use them to bounce questions off of. Because you’re working collaboratively, you’re still going to get a lot of the same benefits of working through it one on one. Agreements are more likely to be amicable and longer-lasting, the process will be quicker than waiting on the court’s schedule, and while expenses have gone up, you’re still certainly going to come out more cost-effective than going to court.

MEDIATION HAS BLIND SPOTS

One of the biggest drawbacks to mediation comes on the back of it being outside of the legal system. This is still a direct collaboration with someone, even if the mediator happens to be an attorney. As such, you have to be able to rely on them to tell the truth. You cannot subpoena their financial records; you cannot force them to disclose all their assets. If there is any question about the good faith and trust of the opposing party, the mediation should not proceed.

Additionally, there are concerns about imbalances of power in the relationship as well. Because mediations are direct negotiations, there is no buffer between the parties. Where one person may be dominant and can bully the other into giving them whatever they want, it can create disparate outcomes. A good mediator should shut such negotiations down, but not all of them will catch it and proceed as if everything is normal.

HAVE YOUR LAWYER CALL MY LAWYER

Oh, collaborative law. The newest and most often forgotten child of family law disputes. Collaborative law slides in between mediation and litigation in the hierarchy of conflict resolution. We wrote about the differences between mediation and collaborative law in this blog, so we’re not going to rehash them all here.

To highlight the benefits, collaborative law retains the resources of an attorney to represent your best interests. Each party will be encouraged to work through things together, and will often be required to sign a “no court” agreement prior to starting things. While cost here is increasing, you still retain the benefits of mediation with constructive resolutions and relative expediency. You also eliminate the issues about disparities in the relationship – where you may feel bullied, your attorney will step in and direct the process so that everything stays on even ground. On top of that, you will now get direct advice on what your best interest is. Your attorney is there for you, where a mediator must remain independent.

However, pretty much all of the cons of mediation are still here too. You have to trust your partner because you still cannot compel disclosures. There is an added twist – if negotiations fall apart, the “no court” agreement will often demand that the attorneys working with you withdraw (they can’t represent you going forward) and you will have to start from scratch. If you aren’t certain you can settle, this can become an expensive primer to litigation.

I’LL SEE YOU IN COURT

Finally – the most intensive option in the dispute resolution hierarchy. Filing a complaint in court. This option has a lot of pros and cons, and it can be hard to cover them all in one place. Ideally, it wouldn’t have to come to this point, but there are often irreconcilable differences – legitimate, petty, or otherwise – that need the input of the legal system to resolve.

By engaging in litigation, you unlock multiple tools to ensure that the field is even. Parties are required by law to disclose all finances and assets. Discovery is on the table, where records can be subpoenaed and witnesses made to submit depositions or testimony if things go as far as trial. Where high conflict exists, the judge will provide feedback and ultimately a ruling on how things ought to be.

IT COMES AT A COST

Literally and figuratively, litigation has costs. Legal challenges in court can easily run into the tens of thousands of dollars depending on how much conflict exists. Courts are backlogged, so you should also expect to be in this for at least 9 months before you have a final judgment barring any agreements you might be able to reach in the meantime. If your case goes to trial, everything hinges on a person, who is fallible, weighing your case against the opposing party’s and determining what should happen. The more input the court has in crafting a final agreement, the more likely that agreement is to be challenged for modification in the future.

This is probably the longest blog we’ve written for anything, by far, and it barely scrapes the surface on any of the four avenues of dispute resolution available to you in your divorce or custody case. If you have questions, don’t hesitate to contact us. We can help get you on the right path.