Informal Settlement Negotiation
Often times, spouses are able to work together to reach an amicable resolution to their divorce or family dispute without court intervention or a formal settlement process such as mediation or collaborative law. The majority of cases we handle are resolved in this manner. We enjoy helping clients negotiate agreements with their partner and prepare the appropriate documents to file with the court. We can only represent one party to any lawsuit, however, and are unable to give any legal advice to the other party.
Mediation is a useful tool in virtually all family law matters, including litigation cases. In mediation, the parties work with a neutral mediator who acts as a communications facilitator and negotiator. Mediators are usually attorneys or retired judges who have undergone substantial mediation training. Typically, the parties occupy separate rooms and the mediator negotiates individually with each party, attempting to achieve a mutually acceptable and beneficial resolution to the parties’ disputes.
During the mediation process, the parties each have an opportunity speak and be heard. They are encouraged to speak directly to the mediator to express their interests and concerns. All mediation negotiations are confidential, and nothing stated at mediation may be used against either party during any court proceeding. The mediator may only report to the court whether the case settled and cannot be compelled to testify at any court proceeding.
Collaborative law is a non-adversarial dispute resolution process in which the parties work together, with the assistance of their attorneys and other neutral professionals, to resolve their disputes without going to court. The parties may be (and typically are) adverse to one another, but the process does not put them against each other as adversaries. Instead, the parties, their lawyers, and other neutral professionals work together as a team. The focus of the collaborative law process is on addressing the parties’ goals and interests in a forward-looking manner rather than punishing the parties for past behavior.
To increase the likelihood that complicated and conflicted relationships will be disentangled in a way that addresses the parties underlying interests, the collaborative law process uses a team of professionals from a variety of disciplines and requires the parties to actively participate in the process. The collaborative team is comprised of two attorneys, each hired by one of the parties to the divorce, a neutral financial professional, a neutral mental health professional, and of course, the parties to the divorce.
In the event the parties are not able to resolve their issues using collaborative law, they may opt out of the process and litigate. Either party may opt out of the collaborative law process at any time. By opting out, the collaborative process will end, the collaborative lawyers must withdraw, and the parties must hire new litigation lawyers. To preserve the confidentiality of the collaborative process, none of the collaborative professionals (lawyers, communications facilitators, financial professionals, or other neutral professionals) may testify at any subsequent trial or hearing.
The key to achieving a successful resolution in the Collaborative Process is to keep the parties focused on their interests and how those interests relate to their ultimate goals. Often, parties focus too much on what they want without thinking about why they want it. In so doing, parties find themselves in the trap of positional bargaining.
Our attorneys are committed to the collaborative process and have substantial training in interest-based negotiation to help guide our clients through the collaborative process every step of the way. Carie P. Silvestri is a member of Collaborative Divorce Texas (formerly Collaborative Law Institute of Texas), the International Academy of Collaborative Professionals, Collaborative Divorce Dallas, and the collaborative Law sections of the State Bar of Texas and the Collin County Bar Association. Carie P. Silvestri is a frequent lecturer on the subject of collaborative law and interest-based negotiation and has presented to various bar associations, businesses, and community groups throughout the State of Texas.
Litigation is a formal dispute resolution process that involves court intervention. Typically, litigation cases require the exchange of written discovery, taking oral depositions, subpoenaing important documents and records, and ultimately presenting a case to the trier of fact – judge or jury – for a decision. Litigation can be very stressful and expensive, both financially and emotionally, for everyone involve.
For some cases, litigation is the only feasible option. In those circumstances, it is important to have the right team working diligently to protect your interests and present your case to the court in the most advantageous light. In litigation matters, we begin preparing for trial the moment we are retained. Our preparation and dedication leads to more positive results for our clients.