Every problem or issue is susceptible to resolution in many different ways. Choosing the best way for you is an important part of the attorney-client relationship. Many legal matters can be resolved through NEGOTIATION, MEDIATION, or THE COLLABORATIVE PROCESS as opposed to traditional LITIGATION. Unless required by a contract or ordered by the courts, these methods of alternative dispute resolution are voluntary. Both sides must  agree to endeavor to  resolve their case in this fashion. The success of alternative dispute resolution rises or falls on the parties’ willingness to deal with each other, as well as with the mediator or collaborative professionals, honestly and in good faith.

In mediation, the parties work with a neutral third party called the mediator to develop a mutually-acceptable solution to their situation. The mediator does not represent either party; she is trained in conflict resolution to help the parties evaluate their goals and options and to formulate a workable solution. The mediator will advise the parties to consult with their attorneys before committing to an agreement. In a divorce case, the parties’ attorneys will also draft the Matrimonial Settlement Agreement, file for divorce, and attend the divorce hearing with the parties. During the course of mediation, the mediator may arrange for the use of experts, such as mental health professionals to help with child custody and parenting time issues, appraisers to value real estate or other property, forensic accountants to value a business or evaluate a lifestyle, or an actuary to value a pension.

Mediation takes place over a series of sessions, usually held in the mediator’s office. The negotiations that occur during mediation are confidential and cannot be used in court if the mediation fails.

Mediation can increase the likelihood of a negotiated settlement by bringing the skills, creativity, and influence of a trained, impartial third party to bear on the problem. A skilled mediator will ensure that all parties are able to respectfully express their needs and that potential settlement options are creatively evaluated.

Mediation frequently saves the parties’ both time and money. Furthermore, it can protect your privacy and moderate the emotional damage caused by the breakup of a marriage or loss of a job. It can also increase compliance with an agreement because it represents a deal made by the parties, rather than one imposed by the judge. Judges often encourage the parties at the beginning of a case to work towards a settlement by saying, “At the end of a trial, I will not know your case as well as you know it today.”

However, mediation is not always successful and is not the right answer for everyone. There are relationships in which the balance of power is so skewed that it is best for the parties to have their attorneys present at all meetings. Many clients simply have an increased comfort level knowing that their attorney is always available to them at a conference. In such situations, collaborative practice may be the best approach. In the collaborative model, mutual respect, transparency, and problem solving are fostered through the use of trained collaborative attorneys; mental health professionals who may serve as facilitators, coaches, or child specialists; and financial professionals who analyze closely-held businesses or other complex assets. The parties meet frequently with counsel and other team members to narrow down the issues, collect information, and assess the available options.

The collaborative process requires a commitment to settlement. A complete breakdown of negotiations will require the collaborative attorneys to step aside in favor of new attorneys who will then litigate.

Litigation takes place in court. There are rules and procedures which must be followed. Your attorney must know the Rules of Court and strictly adhere to them. Successful litigation requires determination, creativity, and hard work. Your attorney is your advocate. There may be times when you feel left out of the process – for example, when your attorney and opposing counsel meet with the judge “in chambers” without you present or when a procedural hurdle may not immediately make sense to you. Therefore, your relationship with your attorney must be one of trust and confidence; you must be certain that your attorney is acting in your best interests. You should also be comfortable speaking with your attorney, both when asking tough questions and when having them answered. Your attorney should be willing to explain rules and legal concepts to you in such a way that you can understand them. Your attorney should return your phone calls and respond to e-mails within a reasonable amount of time, and you should receive copies of all correspondence concerning your case. An attorney cannot guarantee the result of your case, but can and should guarantee that you will be treated with courtesy and respect.

Marcia K. Werner is an experienced litigator who also believes in mediation and the collaborative process as the best choices for certain legal cases. Trained in both mediation and collaborative practice, she is a member of the Collaborative Divorce Association of North Jersey.