If you are involved in a divorce or other family law matter, you will need to have a clear understanding of the concepts of mediation and litigation.
Put simply, litigation means a legal proceeding in court. Litigation is necessary when the parties cannot reach an agreement on their family law matter or, in less common scenarios, when there is an emergency that requires swift court intervention. Litigation requires the filing of pleadings with the court and typically leads to a trial or other hearings with a Judge. At trial, the parties present witness testimony and other evidence in support of their requested relief. Once the evidence has been presented, the Judge will weigh the evidence and make a ruling, which is ultimately reflected in a Court Order.
Formal discovery is a significant and costly component of litigation. This process requires the disclosure of information and documents from the parties themselves, and sometimes involves the discovery of information from third parties via depositions and subpoenas issued to financial institutions, employers, etc. Your attorney may also advise you to hire expert witnesses as part of your case strategy and there may be the need to file preliminary Motions relating to temporary (pendente lite) relief or to secure information not provided in discovery.
Mediation is available at all stages of your legal matter, including after litigation is underway. Many parties elect to attempt mediation before any court filing occurs to assist them in reaching an out of court resolution and to reduce their legal fees and expenses.
Mediation is a process by which parties try to resolve their disputes with the assistance of a third party, or mediator. The mediator may be a family friend, a lawyer, a therapist, or a professionally certified mediator. The process can be informal, as with a friend or pastor, or it can be more formal, including scenarios when the mediation is conducted by a retired Judge and with both parties and their attorneys present. In any format, the goal of mediation is to reach a fair compromise on all issues outside of court. If lawyers do not participate in the mediation session(s), the mediator typically will assist the parties in drafting the Agreement that reflects their resolution, and instruct the parties to discuss the terms with their chosen legal counsel.
While avoiding litigation is generally preferred, not every case or issue is amenable to mediation, because it requires a “level playing field.” If one party is at a distinct disadvantage or is physically afraid of the other party, mediation may not be appropriate.
Have questions? Contact the trusted attorneys at Cooper Ginsberg Gray today to schedule an initial consultation.