You now have a choice in the dispute resolution process….
Will you mediate or litigate?
What is mediation?
Mediation is an alternative to taking a matter before a Court in a contested hearing. It is a process where you and your opponent meet with a third-party neutral to negotiate a resolution that satisfies the needs of both parties. While this sounds like the antithesis to the battle for rights that occurs in the Courtroom, it has the amazing capacity of finding a mid-point where both parties can walk away with a livable solution and get on with their lives. If done properly, it is cost effective and more time effective than litigation. Once the mediation is complete, you will need the paperwork drawn up and a final court date on your divorce.
What you need to know about the mediation process.
Mediation may occur with or without attorneys being present for each side. The mediator may be an attorney who has received special training or it may be a person from another field of expertise such as counseling. An attorney mediator will have more knowledge of the law and a counselor mediator will be more sensitive to the emotional needs of the parties. You may find that you need both.
If you are going into mediation without separate attorneys for both sides, you will want an attorney mediator at some point. The attorney mediator will be able to instruct you on the elements of the law and the parameters that would set by the Court. The attorney will also know some of the nuances of each particular court. It is necessary during mediation to talk about legal issues such as property division, alimony and child support. A counselor mediator will fall short in giving you legal support. However, keep in mind that the mediator will NOT represent you during the mediation or in court.
You may also find that a counselor mediator will help you understand the emotional process that you and your children are going through. If children are not acting badly during the divorce they are probably hiding their feelings. Remember, you and your spouse have probably been thinking about a divorce for a year or more. Your children will wonder what happened and they will feel incredibility insecure. An attorney mediator will fall short on working through the emotional process with you and your children.
Mediation should be done in segments of a minimum of two hours each. Sometimes, parties want to set aside a whole day and keep hashing through the problem until they feel that they have fashioned a reasonable agreement. The key to success in any mediation is the desire to resolve and move on. If you or your spouse is denying that the divorce is happening, they will continue to set roadblocks to the resolution. Once you have both acceptable the inevitable dissolution of the marriage relationship you will be able to fashion a new lifestyle that give both freedom and security.
What is litigation?
Litigation is the process of filing a contested claim against your spouse (or some other person) and preparing a case to be heard in front of a judge or jury. Lawyers spend years learning the complicated process of collecting competent evidence and learning the rules of evidence and procedure. As a litigant, you will never understand the intricacies of this process and your lawyer will not have the time or inclination to make you a lawyer.
You will need to rely heavily on their ability to decipher this process and be prepared for trial. It does not hurt for you to ask questions about the witnesses you will want to call or the documents that you will want to show the Court. However, be prepared for your attorney to say things to you like, “That's hearsay.” “That's inadmissible.” “That's irrelevant.” You'll wonder what they are talking about and even your attorney's explanation will leave you puzzled.
Litigation is time-consuming and expensive . However, sometimes it is the only way to bring a matter to conclusion. If one party insists that they have been ‘wronged' and that a judge is the only person that will award them a claim against the other person for ‘wronging' them, litigation may be the only answer. It is not unusual for a contested divorce in the middle Tennessee area to take one and one-half years and cost each party about $15,000 to $20,000.
What you need to know about the litigation process.
The litigation process involves meeting with an attorney to prepare and file your original complaint against the other party. The opposing party will be served by the sheriff or private process server. The opposing party will have to answer the lawsuit and will often file a counterclaim against you. You will have to answer the counterclaim.
The second phase of the process is called discovery . You and your attorney will decide what information and documents you need from the party. A written request will be made for this information and it will take thirty to sixty days for you to get a response from them.
After the initial discovery is complete, you will commence depositions and the preparation of any expert testimony needed for the hearing. All of this must be done before the Court will give you a court date for the final hearing . Each Court varies, but it will take about four months to get the date for your final hearing.
If either party is dissatisfied with the Court's ruling they may appeal to the Court of Appeals . The Court of Appeals does not take testimony, but will review any or the entire transcript of the proceedings that your attorney files with the Court of Appeals. Your attorney will also have to file a written argument and the opposing attorney will also file a written argument. Both attorneys will appear before the Court of Appeals to argue why they believe the trial Court made an error. The Court of Appeals will take several months to respond. This whole process takes about one year. The appellate attorney may or may not be the attorney you used during your initial hearing. An appellate attorney will charge from $4,000 to $10,000 for an appeal in a typical case.
If either party is dissatisfied with the Court of Appeals, they may ask permission to appeal to the Supreme Court of Tennessee . The Supreme Court will only hear a case if they believe that a current law is in error or the current law is too confusing for trial Courts to interpret. If the Supreme Court takes a case, this process could also take up to one year.
See The Legal Time Clock to help you understand the time needed to complete the process.
Remember, in addition to the costs of your attorney, you will have court reporter fees, transcript fees, and court costs.
Skilled Tennessee Mediation Lawyers
At LawCare , we are committed to helping those in Tennessee communities such as Nashville, Brentwood and Franklin deal with mediation and litigation matters. Our firm can be reached by phone at (615) 661-0122, by e-mail, or by filling out our in-take form.
