Litigation is adversarial in nature and traditionally the process by which parties end their marriage.
Possible benefits of litigation may include:
- The court can issue temporary orders restraining, among other things, the wrongful dissipation of assets, generally on an immediate basis.
- The court can issue other temporary orders, regarding matters such as parenting rights and support obligations, although such orders may take weeks or months.
- The court can enforce the discovery of necessary information and may impose sanctions for failure to comply with the discovery process.
- If any issues are not ultimately settled, the court will hear evidence at a trial, apply “the law,” and then make a decision disposing of all remaining disputes.
Possible drawbacks of litigation may include:
- Adversarial process, in a non-private forum, and position-based bargaining greatly increases relational costs (i.e., increased likelihood of long-term impairment of the parties’ ability to directly communicate and interact with each other in a dignified, effective manner).
- Increased conflict between the parties increases the negative impact upon their children.
- The parties cede control in favor of the court making decisions for them, which decisions are necessarily made from a more limited, non-customized set of options, after consideration of only the information that is admissible under technical rules of evidence, and often neither party emerges as a clear winner.
- The time consumed by, and resulting legal fees involved in, pursuing formal discovery proceedings, temporary order contests, trial and possible appellate court proceedings can take a substantial toll, emotionally and financially, upon both parties.
Arbitration is the last of the three adversarial processes.It is much like litigation, except the spouses and their lawyers agree to hire a private person (usually another lawyer) to make a decision instead of having a public official (Judge or Magistrate) make the decision.
Possible benefits of arbitration may include:
- Unlike litigation, a third party lawyer is selected and hired to act as a private judge, so that the case can be heard in a private forum and on a time schedule determined by the parties.
- The scope of an arbitrator’s powers and role is determined by the parties’ agreement to utilize arbitration.
Possible drawbacks of arbitration may include:
- Parenting disputes and child support amounts cannot be absolutely determined by an arbitrator, meaning that court intervention will still be required on these issues if they are not settled by agreement.
- Arbitration utilizes the adversarial process, like litigation, and therefore many of the same risks of litigation (increased relational costs, ceding control over decision-making, etc.) still apply.
Lawyer negotiation is another adversarial option available to achieve a divorce. Although lawyer negotiation can occur without pending litigation, and although a lawyer negotiation might sometimes be described or referred to as “Structured,” “Principled,” or “Cooperative” Negotiations, it is – – – at its heart – – – a strategic battle where negotiating leverage is applied by and upon both sides. As such, it often leaves one party – – – and sometimes both parties – – – feeling as if he or she “lost” and the other party “won.”
Possible benefits of lawyer negotiation may include:
- Lawyers may use interest-based negotiation, and may choose to cooperate on discovery matters, through negotiations that can take place either in four-way meetings or between the lawyers.
- Unlike a collaborative process, the lawyers are not retained for a limited purpose and each party can keep her or his same counsel to litigate unresolved issues.
Possible drawbacks of lawyer negotiation may include:
- Unlike mediation or a collaborative process, protocols and processes are not as clearly defined, decreasing the likelihood of resolution and increasing the likelihood that a party will resort to litigation.
- The possibility that the lawyers may at some point be adversaries in litigation can negatively impact the level of trust that may be necessary to resolve issues (especially in an interest-based negotiation) because, like in litigation, the attorneys are still simultaneously pursuing settlement and preparing for trial.