Litigation is the process of settling legal matters by filing or answering a complaint through the Court system. The major steps in litigation include:
- One party (plaintiff) files a complaint with the Court.
- Other party (defendant) is served with the complaint.
- Parties meet to discuss possibility of settlement and prepare legal plan.
- Parties file discovery requests (for information, documents, etc.)
- Parties respond to discovery requests /disclose documents.
- Process moves forward.
- Parties may file additional motions.
- The Court conducts a preliminary pretrial/case management conference.
- The Court may hold further pre-trial/status conference.
- The Court conducts trial.
- The Court renders, signs, and enters the judgment.
- Post-trial proceedings may or may not occur.
- Appeal may be taken. Depending on the situation, judgment may or may not be upheld.
- Appeal is considered based on either briefs or after oral argument.
- Judgment is rendered on the appeal.
- Additional proceedings may or may not occur.
- Judgment is enforced.
Alternative Dispute Resolution (ADR) is the process of settling legal matters without litigation. Typical ADR options include mediation, conciliation and private adjudication facilitated by an objective third party. The steps in the ADR process depend on the option used, but all are less costly and time-consuming than litigation. One of the main reasons parties prefer ADR is that, unlike litigation, which is usually adversarial, ADR is often collaborative, allowing parties to understand each other’s positions, and, in many cases, come up with more creative solutions to the issues at hand.
How much less time and money will it take to settle my legal situation through dispute resolution instead of litigation?
Because each case is different, there is no formula to determine how much less time and/or money it will take than litigation. In general, ADR takes less time than litigation because you typically do not have to hire an attorney to carry out all the steps included in the litigation process. (See question 1.) This, in turn, saves money. During your initial consultation with Why Litigate, the legal professional assigned to your case, will give you a realistic idea of the time frame and cost.
For ADR to work, both parties must be committed to the process.
ADR is designed to help people work through conflicts without the need of a judge or legal proceedings. Therefore, unless the parties choose the private adjudication option of ADR, they seldom need to hire their own attorneys. However, some people do choose to hire outside attorneys to review agreements made through the ADR process. Also, one of the unique features of Why Litigate is that our legal team is comprised of experienced attorneys and retired probate judges. Therefore, our clients receive services from individuals who possess a deep knowledge of the law and advanced legal skills.
In the state of Massachusetts, only a judge can officially grant a divorce. Therefore, you will have to go before the Court at least once for the judge to grant the divorce.
All divorces in Massachusetts are filed and heard in the Probate and Family Court in the county where the parties last lived together.
Modifications, involving such things as child support, alimony or parenting schedules, do not necessarily require that you appear in Court. If you are seeking to modify an existing judgment through ADR, your ADR professional can assist with drafting the necessary paperwork and then submit it to the Court for review.
Conciliation is a process in which an experienced attorney or retired judge assists the parties to settle their case by clarifying their issues and assessing the strengths and weaknesses of each side of the case. If the case is not settled by conciliation in total, the attorney or retired judge helps the parties explore the steps which remain to prepare their case for trial.
The conciliator’s job is to identify the contested issues and provide input to the parties as to the possible scenarios for resolution based upon their experience and other circumstances that would affect the result if the issue were tried by a judge. The ultimate goal of a conciliator is to direct the parties to a resolution based on the facts. The role of the conciliator is different than the role of a mediator. In conciliation, the conciliator tells the parties what the result could be as compared to mediation where the mediator asks the parties what they want the outcome to be.
Conciliation is not a substitute for the services of a qualified attorney. Both parties are encouraged to obtain independent counsel during the conciliation process, and to have their lawyer review any agreement before it is signed.
No case is too complicated to be resolved by using the conciliation process. The parties in conciliation may consult with outside experts such as accountants, appraisers, financial planners and attorneys during the process.
The conciliation process focuses on resolving all, some or limited issues in any case. In the event that issues remain unresolved the conciliator will assist the parties in identifying what steps need to be taken to bring the unresolved issues to trial. The time spent in conciliation is not wasted. An agreement or “stipulation” on the agreed upon issues can be presented to the court while the unresolved issues can be litigated by a judge at a later time.
The conciliation process generally requires blocks of time contingent upon the complexity of the contested issues. Conciliation time blocks are generally scheduled for half days, or four (4) hours.
The cost to litigate divorce is generally higher than the cost of conciliation. Because conciliation tends to promote a faster result than litigation, the cost to conciliate reduces the parties’ respective lawyer’s fees. There is also an emotional cost to the parties and their children when they engage in protracted litigation. This emotional cost can be greatly reduced by the conciliation process.
If the parties come to a full or partial agreement at the conclusion of their conciliation, the conciliator can prepare a memorandum of understanding which the parties can later use as an outline for an agreement.
Conciliators who are attorneys or retired judges can prepare full or partial agreements, or other court documents, which may be reviewed by the parties’ respective attorneys, filed with the court and subsequently presented to the court for approval.
If an agreement does not seem possible through conciliation or mediation, private adjudication allows the parties to present evidence to an experienced attorney or retired judge in a formal or informal setting. The adjudicator will render a written decision based upon the evidence.
Private adjudication provides the parties and counsel with a cost-effective and time-effective method to present the relevant evidence supporting their respective positions as an alternative to conciliation or mediation.
The private adjudicator’s job is to provide guidance to the parties on the contested issues based upon the adjudicator’s experience and the facts and circumstances of the case.
The private adjudication process is similar to a court-like setting. Both parties are encouraged to obtain independent counsel during the private adjudication process.
No case is too complicated to be resolved by using private adjudication. The private adjudication process is similar to a court trial. The issues, evidence and arguments presented by the parties’ lawyers are dealt with in the same manner as would be handled by a probate court judge.
The private adjudication process presumes that the parties cannot agree on some or all of the issues and require a prompt decision from an experienced lawyer or retired judge. The adjudicator’s decision may be used by the parties as guidance to come to an agreement or may be used as the basis of a final decision which ultimately will be subject to the approval of the probate court.
The private adjudication process generally requires blocks of time contingent upon the complexity of the contested issues. Private adjudication time blocks are generally scheduled for half days, or four (4) hours.
The cost to litigate issues in the probate court tends to be higher than the cost to participate in private adjudication. The experienced attorney or retired judge, acting as a private adjudicator, could schedule a hearing on contested issues substantially faster than a hearing before a judge in the probate court. The accelerated process of adjudication substantially reduces the additional costs of the parties legal fees as compared to the protracted court litigation.
An experienced attorney or retired judge, acting as a private adjudicator, will render a decision on contested issues presented by the parties. This decision may be used as the basis of a later agreement by the parties or may be presented by the parties for the court’s consideration or adoption.
In divorce mediation, a couple, or in some cases, a couple and their respective lawyers, hire a neutral third-party, called the mediator, to meet with them in an effort to discuss and resolve their issues in the divorce.
Mediation is based on principles of negotiation, and problem-solving. The decision-making authority remains at all times with the parties and not the mediator.
The mediator’s job is to assist in identifying issues and explore alternatives. The mediator must conduct the mediation in an even-handed, balanced manner. The ultimate goal of the mediator is to help the couple reach their own resolution.
Mediation is not a substitute for the services of a qualified attorney. Both parties are encouraged to obtain independent counsel during the mediation process and to have their lawyer review the agreement before it is signed. Even when the mediator is an attorney, he or she cannot give either party legal advice.
No cases are too complicated to be settled using mediation. The parties in mediation may consult with outside experts such as accountants, appraisers, financial planners in attorneys during the process.
Although possible, it is not unusual that one or two issues remain unresolved after mediation. The time spent in mediation is not wasted. An agreement can be prepared for all the resolved issues and the parties can either litigate the remaining issues or can take further time to think about them and come back to mediation at a later date.
The complexity of the issues in the ability of the parties to be flexible as they negotiated an agreement will determine the length of the mediation.
The cost to litigate a divorce is generally higher than the cost of mediation. There is also an emotional cost to the parties and their children when they litigate a matter. This emotional cost can be greatly reduced by the mediation process.
If the mediator is an attorney, that attorney can assist the parties in filing all necessary papers with the court, including starting the complaint for divorce, preparing and filing the proper disclosure documents and preparing the agreement and other papers necessary to be filed with the court.