Litigation Alternatives

While the Chicago Family law attorneys at Katz & Stefani are effective and experienced litigators, when possible we find it is beneficial to our clients to avoid the financial and emotional costs of extensive involvement in the court system. There are many ways cases 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 options:

Direct Attorney Negotiations. In certain 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.

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. 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.

Mediation. Mediation is required 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 relative to financial disputes and, when requested by a motion in court, the courts almost always do order such financial mediation. For clarity, while mediation can be ordered and the parties required to participate they 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.” Mediation is one of the most frequently employed and most successful methods of reaching an agreement outside of court in dissolution of marriage and related proceedings.

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 and, instead of remaining totally neutral, may make a non-binding proposal for settlement. In our experience this process can be very effective especially where a mediator is a retired judge who can provide helpful insight into the likely results in court as well as instilling confidence for the parties.

Arbitration. Arbitration is not often used in dissolution of marriage proceedings as an alternative method of dispute resolution as the decisions are binding; however, in certain instances such as where the issue is narrow in scope, arbitration could be a possible method of reaching a resolution.

Collaborative Divorce. A collaborative divorce is a process whereby parties retain attorneys specifically trained in the process, who, together with the parties, the other attorneys, and often other experts (such a financial neutrals or child specialists) 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.

The collaborative process was recently codified (effective January 1, 2018) as part of the Illinois statutory scheme as 750 ILCS 90/1 et. seq. which sets forth the detailed requirements and parameters for a collaborative divorce.

Divorce is painful. The attorneys at Katz & Stefani seek to make the process as painless as possible while also obtaining the optimum results. Often, the use of one of the above methods for resolution can provide a party with a more efficient, cost-effective, dignified, and superior result.