Mediation, Collaborative Law, & Litigation
|Process||The mediator guides the process with input from the parties who have the ultimate control.||Attorney Referral Model: The attorneys control the process and refer to special professionals if they decide that such assistance is needed. Team Model: In this model, the attorneys will assemble a team consisting of various specialists who they believe will most effectively address the needs of the parties.
The attorneys and parties will decide the number of specialists on the team. Interdisciplinary Team: A full team approach.
|A case schedule sets forth the timing of hearings, discovery, motions, ADR, and trial. In addition, there are statutes and rules that set forth the process.|
|Attorney Involvement||Flexible. Not required for participation in mediation sessions, but permitted to attend if parties desire. Parties encouraged to use “unbundled” legal services to obtain legal advice, which mediators may not provide, and for document preparation and/or review.||Each party hires a Collaborative Lawyer who meets with client and attends four-way and other meetings with other party and his/her attorney.||Usually. Parties may represent themselves (pro se).|
|Lines of Communication||You and your spouse communicate directly with the assistance of the mediator.||You and your spouse communicate directly with the assistance of members of your team.||You and your spouse negotiate through your lawyers|
|Privacy||Private; high degree of confidentiality. In most cases, all documents prepared for mediation, as well as all matters discussed in the sessions,
are confidential. Only the final judgment (degree) is a public document.
|Private; high degree of confidentiality. All documents prepared for the collaborative negotiations, as well as all matters discussed in the sessions,
are confidential. Only the final judgment (decree) is a public document.
|None; creates public record. This is the least private of the processes. Most pleadings are in the public record. Hearings and trials are open to the public.|
|Discovery||Informal; by agreement of parties.||Informal; by agreement of parties.||Broad discovery.|
|Use of Outside Experts||The parties jointly retain “neutral” specialists who they determine are needed for information and guidance.||The parties jointly engage the services of collaboratively trained specialists. In some practice circles, the use of certain specialists, such as Certified Divorce Financial Planners and Parenting Coaches, will be required. Others will allow the parties to decide.||Each party retains his and her own experts to refute the arguments of the opposing party, incurring tremendous expenses.|
|Costs per person||Mediator: $125/hr. + $250 to $300 final agreements; Fees for associated professionals, including lawyers, CPA’s, appraisers, & mental health practitioners may be shared by the parties.||Each party pays for his/her own attorney, usually $250 to $350/hr.
Fees for associated professionals, as in mediation, may be shared.
|Each party pays for his or her own attorney, usually $250 to $350/hr., including motions, hearings, depositions, appeals. Each party pays for his/her own experts, including experty testimony, court reporters, and transcripts.|
|Dispositive Issues & Remedy||In limited issues, such as Child Support, law may control. Otherwise, parties may rely on their own perceptions of “fairness,” interests, and needs. Outcomes can be creatively designed to enhance overall benefit, encourage or heal relationship; etc.||In limited issues, such as Child Support, law may control. Otherwise, parties may rely on their own perceptions of “fairness,” interests, and needs. Outcomes can be creatively designed to enhance overall benefit, encourage or heal relationship; etc.||Law & precedent govern outcome. Relationship and sense of justice are not relevant, only legal rights, obligations, best interests of children.|
|Decision Maker||Parties negotiate & agree on outcome.||Parties negotiate & agree on outcome.||The judge will rule in accordance with the relevant statues or case law.|
From 2 to 20 hours. In some instances, a mediated divorce can be resolved within just two or three sessions, though the majority of cases will take an average of three or four months. The parties set the pace. Note,
however, in Washington State, there is a 90-day waiting period between the time of filing the Petition for Dissolution and the time when the parties may finalize their divorce.
As in mediation, the parties control the timetable. Scheduling, however, is slightly more challenging than in mediation because there are two attorneys, rather than one mediator, as well as the affiliated professionals, who schedules must be accommodated.
A case schedule is issued at the beginning of the litigation (initiated by the filing of the Petition for Dissolution). Trial in Washington State is approximately one year from the time of filing, but that date often is moved further and further out when attorneys use delay tactics for hearings or have scheduling conflicts related to other cases. Additionally, disgruntled parties often will appeal the court’s ruling,
creating even further delay in finality.
|Finality||Written, signed agreements are binding||Limited right of appeal||Broad right of appeal|