What is Litigation?
Litigation is the process of resolving a legal issue through court action. In most areas of the law the court action is initiated by filing a Complaint, but in Washington, family law actions like divorces are initiated by filing a Petition with the court. Unless the other party signs off on the Petition, it needs to be served on the other party along with a Summons. The Petition tells the court what the case is about, and the Summons tells the other party what they need to do to respond to the Petition.
Once a case has been filed with the court, you can bring motions related to the action. Often in a divorce case there is a motion filed early on for temporary orders. This is a request to the court to make some decisions about how the parties will operate pending a final resolution in the case. This may include ordering temporary spousal support, temporary child support, a temporary parenting plan, temporary restraining orders, or the appointment of a parenting investigator. Other motions might be filed to address violations of the temporary orders, or related to discovery (information gathering). Motions usually do not involve live testimony (the evidence is submitted on paper in advance), but do often involve oral argument by the attorneys.
Along with getting the parties stabilized in terms of temporary living arrangements, one of the first steps in most cases is doing discovery. Both sides need to see what evidence they can gather to determine what they can build an argument for either at court or in settlement negotiations. The parties need to gather income documents, tax returns, bank records, interview potential witnesses, determine values of property and debts, etc. The discovery process may involve subpoenaing documents, exchanging documents with the other side, taking statements (often in the form of depositions), or having the other party answer written questions (called interrogatories). Your attorney will need to spend time analyzing all of the information that has been gathered to determine what they believe a reasonable settlement would look like and to prepare for trial if necessary.
Once the parties feel that they have gathered the information that they need, they will generally enter into negotiations. This could just be letters between the attorneys, or might involve some kind of settlement conference with a neutral mediator. Often one of the roles of the mediator is to offer a neutral opinion as to the merits of the case and what they believe the likely outcome at trial would be. Your attorney will let you know what they believe a reasonable outcome at trial will be as well, and will negotiate with the other side’s attorney, often through the mediator, to try and get to the best settlement for their client they can.
If the two sides are not able to reach a settlement, then the case proceeds to trial. There are no juries in divorce cases — all issues will be decided by the Judge. The attorneys take turns presenting the evidence they have gathered as well as their arguments about what they believe should be done based on the evidence. At the end of the trial, the Judge gives his or her decisions, called rulings. Generally the attorneys are responsible for turning the oral rulings into written court orders.
What is Mediation?
Mediation is a dispute resolution process involving a neutral mediator who helps to facilitate the discussion between the sides involved in the dispute. In the context of divorce cases in King County, there are two common forms of mediation, sometimes referred to as Settlement Conferences and Early Mediation.
The Settlement Conference model (evaluative mediation) is a response to the court’s requirement that the parties must engage in some kind of dispute resolution process prior to proceeding to trial. The Settlement Conference is therefore a step in the litigation process rather than an alternative to the litigation process. Because the Settlement Conference is typically the last stop before trial, both sides have generally worked up their cases for trial and are generally arguing over what they believe the likely outcome at trial will be. Part of the mediator’s role is therefore to offer a neutral expert viewpoint on what he or she believes the trial outcome will be (also called evaluative mediation), based on materials submitted by both sides. Most often the mediator puts each party in a separate room with their attorney, and shuttles back and forth between the two rooms. The mediator will talk to each side separately about the positives and negatives of their respective cases, convey settlement proposals, offer his or her own suggestions, and generally work to move both sides towards the point where the mediator believes the case should settle. Sometimes the mediator will agree to arbitrate (decide) any issues that remain unresolved at the end of the mediation session.
Unlike Settlement Conferences, the Early Mediation model (facilitative mediation) is often an alternative to litigation rather than simply a step in litigation. It generally starts much earlier in the case because the parties are choosing to mediate in order to avoid litigating. Often this involves the parties working with the mediator without having their attorneys present. Because the parties are typically hoping to avoid litigation, early mediation tends to focus less on evaluation of the merits of each party’s legal case, and more on the concerns and goals of the two parties (often called interest based mediation). This type of mediation typically involves both parties being in the same room with the mediator, as part of the goal is to have both parties listen to the concerns and goals of the other, so that the parties together can develop options for reaching solutions that address the interests of both. The mediators role is to assist the parties in their discussion by asking questions, guiding the conversation, helping the parties to brainstorm options, sometimes making suggestions.
The mediators at Seattle Divorce Services are available for both Settlement Conferences and Early Mediation.
What is Collaboration?
In the context of divorce work, Collaboration is not just another word for cooperation, it is a specific process for assisting parties in resolving legal issues.
Collaboration is an outgrowth of Mediation. In fact, the standards of the International Academy of Collaborative Professionals call for all Collaborative professionals to be trained in Mediation as well as Collaborative process. Like Mediation, Collaboration is designed to assist parties in coming to their own resolutions of their disputes. Collaboration is however a more highly supported process. It is specifically designed to help parties not just find solutions, but to find the solutions that best suit their situations.
The Collaborative process involves two attorneys, one for each spouse. Most often there will be full professional team also including a divorce coach (or one for each party), a financial specialist, and if there are children, a child specialist.
At the beginning of the Collaborative process, the parties and team all sign an agreement, that among other things, says that as long as they are engaged in the Collaborative process, they are resolving the issues outside of court, i.e. that they will not go to court or use the threat of going to court (an exception is to enter agreed court documents). When parties choose to give up the right to bully and threaten each other into settlement, they instead have to think in terms of what they can offer the other to induce the other to give the first party what they want. To do this, both parties have to stop focusing on just what they want, and start listening to better understand what the other person also wants.
In Collaboration we assist the parties through specific steps of identifying the issues and resources, identifying what is most important to each party, identifying what options are available to address the goals of each party, evaluating which options best meet those goals, and finally tailoring the selected options so that they meet the specific goals and interests the parties have identified. By jointly problem solving in this way, we are able to avoid much of the rancor and conflict that is typical in divorce, as well as create much more tailored solutions.
What if we are in agreement?
The most difficult, and expensive, part of a typical divorce is reaching agreement on the terms of the divorce. If the two of you are able to reach an agreement on your own, congratulations!
Generally the court does not substitute its judgment for your own, and so will sign off on whatever the two of you have agreed. However, when it comes to the children, the court may look over your shoulders to make sure the children’s interests are protected. For instance a parenting plan that allows the children to make choices about time with each parent may be seen as putting an unhealthy burden of divided loyalty on the children.
Child support is an area that the court will look at especially closely. The state has developed a formula for the calculation of child support obligations, and you will need to provide a copy of that calculation to the court with your child support order. If the two of you want to use a different figure than what the calculation provides, you will need to explain the reasons for your different figure to the court and convince it that your figure does not deprive your children of needed support.