Litigation vs. Alternative Methods

Litigation vs. Alternative Methods FAQs:

It sounds to me, Brian, at least emotionally, that the collaborative process and mediation would be a better alternative than litigation. How does it work financially? Can you generalize about the cost that somebody would pay for each of these processes?

Loughmiller: Sure. I mean, initially the retainers are very similar. I think, though, if you have a case that is successfully mediated or you’re successful through collaborative law, it will be less expensive because you don’t have the costs for preparation for trial and then the time that you’re in court for the trial time. It is a cost savings.

With mediation, that’s always something we talk about. We talk about the value of the settlement relative to the amount of money that you’re going to spend if you continue the litigation process and keep fighting.

There are some cases where that cost is significant. If you have cases with significant separate property issues, a party may spend over $50,000 just working on issues of tracing their separate property. That potentially could be avoided if you go to mediation and can get the parties to agree on a settlement that takes into consideration the separate property issues.

It’s the same thing with the collaborative law process. If you can sit down in a room with both parties, look at their documents, and talk about what constitutes community property, what constitutes separate property, and walk them through the evidence that you have that you believe can establish the separate property claim, you’re doing that without the need of a forensic accountant.

And if they still want to have a neutral party look at it, because that neutral party is not retained by one side or the other, it saves money because you’re not going to get a second expert to look at it like you would if it was a retained expert.


Loughmiller: Also, the level of detail is not as important so that you’re not going to sit there and have somebody analyze 20 years of bank statements. You’re going to walk through a process with the parties in the room and see if they will agree on certain assumptions that will allow you to reach that conclusion.

So it does save a lot of money by going through that process. It’s hard to quantify the actual dollars, but the other factor that’s important for people to understand is it’s not just the money you’re going to spend on a divorce, but it’s also money you’re going to save potentially in future litigation.

I’m pretty sure these statistics are very similar no matter what state you’re in: cases that go to trial and, especially on child custody matters where one side effectively wins custody over the other side, those cases will end up back in court over 80 percent of the time.

Often, what the literature suggests is the reason they end up back in court is that the person who lost never recovers, or they don’t get over the fact that they lost an issue they didn’t think they should lose and they’re looking for that next opportunity to get back in court.

By settling at mediation or settling through a collaborative process, both parties walk out feeling like that they have an agreement they can live with. And they’re not going to have the potential for spending attorney fees in the future to try to recover something that they lost in litigation.

What would you tell a client who just absolutely feels that they need to have their day in court so the world can understand their story and let them tell their story? How do you advise that client?

Loughmiller: Well, generally, I would tell them that they’re not going to get the satisfaction that they think they’re going to get by being able to tell that story, because the rules of civil procedure really are restrictive. You know, the rules are not established to allow a person to go in and tell their story without interruption and they’re really restrictive rules. They’re really designed to limit the amount of evidence that comes in based on credibility of the evidence.

There’s going to be objections; there’s going to be hearsay issues; there’s going to witnesses that you think you can get that you’re not going to be able to get to come to your hearing because they don’t want to be in the middle of your divorce case. Or maybe they’re not going to say what you think they’re going to say after your attorney talks to them.

You don’t really get that satisfaction. And if you really want to be able to give your side of the story, there is a way you can do that through a collaborative process where, although you have to be respectful and you have to do it in a way where you’re not being antagonistic, you can sit in a room and tell the attorney on the other side. Here are my issues as relates to how I want to raise my children; here are my issues as it relates to our property issues and why I feel I’m entitled to this particular settlement.

So, you’re going to have that ability to do that and you’re just doing it in a setting where you don’t have those restrictive rules from an evidentiary standpoint that, quite frankly, frustrates most people. Most people walk out of court feeling like they didn’t get to tell their whole story.

An example I can give you is, if you’re in a case where you are even married for 20 years and you’ve raised two or three children, and they’re now in middle school and high school. Now you’re going through a divorce and you want to go into court and talk to the judge and tell them your 20-year history of your marriage, and why you’re here, and everything that’s happened to you. And the judge looks at your attorney and says, okay, well, I have 20 cases on the docket today, so I’m going to give you each an hour for your hearing.

Well, there’s no way in one hour you can convey everything that you would want to convey to that judge that you believe is important through a 20-year marriage. You’re going to walk out of that hearing very frustrated: you’re going to be frustrated with the process, with your attorney, with your spouse. Because you just don’t really feel like you got that day in court.

That’s why going through an alternative method is good, because you’re not going to be limited to that type of time constraint. You’re going to have as many meetings as you need to have.

Your mediation may last two or three days, in some cases. Or it may last eight hours or nine hours. There’s no other case that’s there taking up the time of the attorneys or the mediator. It’s your case. So you get the benefit of all that time that you need.