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Going to court is expensive, time consuming, gut wrenching, and uncertain. Additionally, it is a lot different than what you see on television when you watch Law and Order.
Most people drastically underestimate the amount of time it takes to prepare a case for trial or even for a short hearing. Hearings in family court are designed to be very short. In Sonoma County, hearings are approximately 20 minutes in length. Trials can take days, weeks, even months in some cases. Hearings are held on issues that need an immediate resolution and cannot wait until trial (ex: temporary child custody and support issues). Trials are held on issues that are either too complicated to be handled at a hearing or that need the introduction of evidence and testimony.
If your case is set for hearing, you may think that you will be in and out of court quickly. This is not true. Generally, you can expect a morning session to last until lunch and the afternoon session to last until 4:00 or 5:00pm. Remember, your case is usually on calendar with at least 15 other cases.
If your case is set for trial, you may think that you will only incur fees for the days that your attorney actually spends in trial on your case. This is not true. Your attorney will need to propound discovery (ask for documents, take depositions, etc), respond to discovery (provide documents, attend depositions, etc); prepare a trial brief and other trial related documents; and actually prepare your case for trial. A good rule of thumb is that it takes at least 3 days of preparation time for every day of trial. A 2-day trial could easily cost you $15,000 in legal fees.
Besides the expense of going to court, there is another downside. The court usually has a limited amount of time to deal with your case. At a temporary child custody hearing, the court is forced to make decisions based on only a short hearing and limited information. Evidence is often excluded for various reasons. The result is that decisions are being made without all of the facts. Is this really what you want for your children?
Who knows the most about your case? You!
Who knows the most about your child(ren)? You!
Generally, the parties know more about their lives, their children, and their property than any judge will ever know. As such, they should be the ones who make the decisions. All that sounds good, but what happens if you are dealing with an unreasonable person on the other side of your case? You may think that it is impossible to settle your case with this person without going to court. This is not true. It is possible to settle your case even when the other party is unreasonable. Sometimes the unreasonable party is just hurt over the breakup of the relationship. Sometimes the unreasonable party has mental health or medical problems that get in the way. Usually, the party who appears to be unreasonable is relying on incorrect information about the law or some concept of "fairness". These problems are not insurmountable. Settlement is still possible (and likely) in your case.
There are many ways to facilitate settlement of your case. However, the one thing that people need to understand is that they will have to compromise their position in order to reach a settlement. Sometimes you have to give something up to get something else in return. Even if you believe that you are legally and morally correct in your position, it still might be appropriate to compromise. You may want that extra $20,000 of equity out of your house, but are you willing to pay $20,000 in legal fees to get that by going to court? Probably not.
There are several ways to resolve a dispute or assist parties in resolving their dispute. These processes are called Alternative Dispute Resolution (ADR). There are numerous types of ADR and they are explained below:
MEDIATION: Mediation is one of the most frequently used methods of ADR because it is informal, quick, convenient and confidential. In this process the parties select a neutral mediator who facilitates the identification of issues and areas of agreement and assists in finding a resolution or settlement of the dispute. Since mediation requires the agreement of the parties to resolve the matter, control of the proceedings and a determination of the settlement terms remains completely in the parties' hands. The mediator remains neutral and assists the parties in arriving at terms that are mutually agreeable.
ARBITRATION: The parties jointly employ a neutral third party or a panel of neutrals to listen to both sides and render a decision. The parties are free to make the arbitrator's decision binding or non-binding. When non-binding, the arbitrator's decision serves as guide or influence upon the parties to bring them closer to settlement. If it is binding, the decision of the arbitrator will be final and generally avoids any further proceedings in the case. Non-binding judicial arbitration may be ordered in certain cases before trial.
EARLY NEUTRAL EVALUATION: A neutral evaluator is hired by the parties to give an evaluation of the case to help settle it. You or your attorney will be permitted to prepare a written statement, present critical witnesses or other evidence, argue your case to the evaluator, meet separately and confidentially with the evaluator, and utilize the evaluator to communicate any settlement offers to the opposing party.
PRIVATE SETTLEMENT CONFERENCE: A voluntary settlement conference is similar to early neutral evaluation in that the parties employ a neutral settlement officer who attempts to persuade the parties to accept a compromise position. It is a form of facilitated negotiation in which the settlement officer may express an opinion about the value of the case, the substantive merits of each party's position, and the probable outcome of the trial.
COLLABORATION: Collaboration is an ADR method in which the participants focus their efforts on reaching a mutually agreeable resolution. Professionals are retained during the collaborative process for the sole purpose of assisting their clients in attaining this goal. The clients and their collaborative attorneys agree that they will not go to court during the time they are working towards settlement. If the clients are unable to reach an agreement, the collaborative attorneys and other professionals withdraw and litigation attorneys take the dispute to court.
Mediation and Private Settlement Conferences are commonly used by our office to assist parties with settlement. Most cases settle. Yours can too.
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