Clients often seem to feel like Dorothy in the Wizard of Oz, when they hear these three terms. Remember, Dorothy was overwhelmed with confusion, repeatedly chanting, “Lions and Tigers and Bears, oh my!” The Denton County Collaborative Professionals want to explain the differences in these processes so that clients, or potential clients, do not feel so overwhelmed and confused.
Litigation is the name of the process where parties file a lawsuit against each other and attend hearings to settle a disputed matter. Over 95% of all cases settle prior to final trial, but there are many issues along the way that require a hearing and decision from the Court, and if the parties are unable to reach a settlement either through informal settlement conferences between themselves and their attorneys or through mediation, with a neutral facilitator/mediator, the Court will make the final decision on the issues of the case. In Court, the parties usually present as much negative evidence as possible against the other side in an effort to persuade the Court to find in their favor in the case. Often, the parties’ relationship is irreparably damaged by this process.
The Collaborative Process was developed about 1990 by an attorney who was weary of the adversarial nature of the litigation process. He designed a process where the parties would contractually agree NOT to go to Court and not to even threaten to go to Court until they had exhausted all options for settlement. Each party has an attorney and in many cases a neutral facilitator and a neutral financial professional are engaged to help with issues of communication, children and finances; the professionals are known as the Collaborative Team. The team uses what is known as “interest-based negotiation,” to settle the case. In interest-based negotiation, information is provided by each party until both parties are satisfied that the information is fully disclosed and accurate, they brainstorm options together, evaluate those options, and negotiate an agreement that is satisfactory to both parties. In most cases, the parties are able to have a continuing relationship, which is healthier for them, the children, and their friends and extended family and the cost is usually significantly less than a fully litigated case.
Mediation is a process that clients commonly refer to as a completely separate option from Litigation or Collaborative Law. However, mediation is not a separate process option from Litigation or Collaborative Law but rather an option within one of those other two processes. In many counties, Courts now require that parties attend mediation prior to a final hearing before the Court. While mediation as a third and independent option sounds the most civilized and inexpensive, upon a more thorough review of it, one learns that there are a number of choices within mediation. Early intervention mediation offers clients the chance to settle their case early on, hopefully before the parties’ relationship is destroyed or at least damaged by what lawyers often call “blood-letting,” which is the term used for the accusations and evidence in depositions and hearings to paint the other party in a negative light. While early intervention mediation offers the possibility of early resolution, often not enough information has been gathered to enable the parties to make an informed decision, and the mediation does not resolve the case. However, even if the case is not resolved, each attorney and the mediator must be paid for their preparation and attendance at the mediation, which may be at a cost of several thousand dollars to the community estate. Clients often appear to think that mediation will be less expensive than Court, and if the case is settled in mediation rather than proceeding to a full trial, that is usually correct. But, just as in early intervention mediation, it is not unusual for each attorney to have completed many hours of written discovery (interrogatories and requests for documents), both to the other side and in response to the other side’s discovery to their client, depositions (which cost several dollars per page for the Court reporter’s cost in addition to the attorney’s time), trial/mediation preparation, and the mediation itself. It is not unusual for a large portion of the work necessary for a trial to have been completed prior to a mediation because an attorney and client may not fully believe they are ready for mediation unless they have prepared for trial and therefore have a full understanding of the positives and negatives of their case and the other side’s case. If a case is handled through the Collaborative Process and for some reason it is not completely settled, one or more issues can be settled through mediation prior to the issues in the case having to be resolved by a Court. So, mediation is not a process separate and apart from either litigation or the collaborative process, but rather it is a settlement process within those two legal processes. If you have additional questions or want more information on litigation, collaborative law or mediation, please contact any one of the professionals on the Denton County Collaborative Professional’s website.