By Carie Silvestri
Whether the parties are in mediation or the collaborative divorce process, the goal is to reach an agreement outside the courtroom. What does that look like? The short answer is, it depends. Ideally, at the end of the day you walk away with an agreement on all of the issues that you can live with, but if not, settlement is not necessarily and “all or nothing” scenario.
What if both parties give mediation or the collaborative divorce process their best effort but reach an impasse? There are several settlement options available, depending on the situation. Following is a breakdown of the various scenarios that might come about from mediation or the collaborative process.
This is, of course, the ultimate goal of mediation and the collaborative divorce process. The parties are able to reach an agreement on all aspects of the case and settle it completely. The attorneys will draft a document specifying everything that has been agreed on, all parties will sign it, it’s filed with the court, and you never have to talk about it again. The case is closed, and the parties move on with their lives.
Most divorce cases consist of two main components—child custody and property. If the parties are able to reach an agreement on one, but not the other, a partial settlement agreement is an option. For example, if the parties agree who has primary custody of the children but can’t agree on who keeps the marital residence, a settlement agreement can be drafted and filed resolving the custody portion, while the court decides the property issue at trial.
If there’s not enough information to make a final agreement at mediation (for example, one party comes to mediation without the appropriate documentation to back up their claim as to property value, etc.), the parties can come to a temporary agreement regarding a custody schedule, child support, etc. while they continue negotiations, which can often take another six months or longer.
If the parties are simply unable to come to any sort of agreement at the end of day at mediation, there are several options. They can take a break—a few weeks to decompress and evaluate the situation—and come back to mediation to continue to try to resolve the case, or the attorneys and their clients can continue to work offline with each other or with the mediator to continue to try and resolve the case. However, with both mediation and the collaborative divorce process, if the parties cannot come to an agreement, going to trial is always a last option.
Litigation Consultation (Collaborative Only)
In a collaborative divorce only, if the parties are unable to come to an agreement, the attorney and their client can meet together with a litigation attorney and present the issues of the case. After hearing the case, he/she will provide insight from a litigation aspect and, based on their courtroom experience trying divorce cases, apprise the client of how their specific issues would most likely be decided by a judge should the case proceed to litigation. The parties can then decide to proceed to court or go back to the negotiation table more willing to make concessions (or not) based upon how their case might go at trial.