Litigation Alternatives in Divorce, Custody and Family Law Cases

While the attorneys at Corri Fetman & Associates, Ltd. are effective and experienced litigators, when feasible and in the best interests of the client, it may be beneficial at various times in a case to discuss alternatives to litigation.

That being said, the first step is to understand that there are only TWO ways to finalize a divorce action or resolve a particular issue that is set for trial or a hearing, namely:

1) You may settle the issues amicably by a meeting of the minds between the parties; OR

2) You will litigate the disputed issues at a hearing or trial whereby a Judge will hear the evidence, testimony and arguments and then render the decision in the form of a court order or judgment.

A Judge, however, CANNOT force your spouse to settle a case. What does that mean? Even if you are attempting to be reasonable and resolve issues in your case but your spouse refuses to settle the case or is ridiculously unreasonable, you (and your attorney) may have no other option but to litigate and go to a trial or hearing on the merits.

There are many ways cases and issues in a case can be resolved apart from litigation. Some possible methods are direct negotiations with attorneys, participating in pretrial conferences with the court, mediation, evaluative mediation, arbitration, and collaborative divorce.  While the avenue that is best for you and your case should be explored directly with your attorney, set forth below is a general overview of the various options:

1. Direct Attorney Negotiations

In various circumstances where, for example, the case is relatively straightforward or the attorneys involved have a constructive relationship, it is possible for the attorneys to work together to reach a resolution. This is often accomplished through the use of settlement letters, telephone conferences, and meetings, often with clients in attendance. This method of settlement can be very efficient and productive under the right circumstances.

2. Pretrial Conferences

Besides conducting a trial and entering a judgment, the court can also prove helpful in assisting the parties in reaching a settlement. A court may conduct a pretrial conference during which attorneys present the judge with the facts of the case and their positions and arguments. After hearing from both attorneys, the judge can make a recommendation for settlement. The recommendation is not binding but it can often be instructive to the attorneys and parties as to likely results at trial and assist the parties in reaching a settlement. It is also very helpful in narrowing some of disputed issues in the case. In some instances, the judge may remain actively involved in assisting the parties in reaching a resolution by conducting several conferences and engaging in extensive settlement discussions. This is dependent on the Judge and the procedures implemented by a particular Judge in a case.

3. Mediation

Mediation is required in most counties in Illinois when the parties are in dispute relative to parenting arrangements, unless there is an impediment to mediation such as abuse. Further, courts may order mediation for financial disputes. When requested by a motion, the courts will most likely order such financial mediation. For clarity, while mediation can be ordered and the parties required to participate, the parties are not required to reach a mediated resolution.

The mediation process is clearly described in Cook County Rule 13.4(e) as “a non-binding confidential process by which a neutral third party, selected by the parties to the case or selected by or with the assistance of the court, assists the parties in reaching a mutually acceptable agreement.

The role of the mediator is to assist in identifying the issues, reducing misunderstandings, exploring and clarifying the parties’ respective interests and priorities, and identifying and exploring possible solutions that will satisfy the interests of all parties and thereby facilitate resolution of some or all of the issues in dispute.”

Private mediation, as opposed to the court mediation, is one of the most frequently employed methods of reaching an agreement outside of court in dissolution of marriage and related proceedings. While there are benefits to mediation, there are also some disadvantages. To ensure that mediation is right for your particular case, the pros and cons should be discussed at length with your attorney.

4. Evaluative Mediation

Evaluative mediation is another method of seeking a resolution to disputes. In this instance, the parties can request the mediator to provide an actual recommendation for settlement of the issues (or a specific unresolved issue). The mediator evaluates the facts and the parties’ positions. Instead of remaining totally neutral, an evaluative mediator may make a non-binding proposal for settlement. This process may be very effective especially where a mediator is a retired judge who can provide helpful insight into the likely results in a court at trial. Again, this depends on the parties, the facts and circumstances and the selected mediator.

5. Arbitration

Arbitration is rarely used in dissolution of marriage proceedings as an alternative method of dispute resolution. In arbitration, the decision rendered is binding. In certain instances such as where the issue is narrow in scope, arbitration may be a possible method of reaching a resolution.

6. Collaborative Divorce

A collaborative divorce is a process whereby parties retain attorneys specifically trained in this method and sometimes other experts to work together as a team to try to reach a resolution of the disputes. Part of the process includes the execution of an agreement wherein the parties agree to resolve their matter out of court and, if either party does at any point pursue the matter in court, all attorneys and others involved in the collaborative process are barred from participating in the litigated case.

To discuss your case and one of the above methods for resolution, please schedule a consultation with an attorney at Corri Fetman & Associates, Ltd. by calling our number or clicking the link below.