In many cases, parents are able to come together and create an agreement for a shared custody arrangement. There is no one standard shared custody arrangement. Some parents set up a visitation schedule in which they have equal time with their children. Still others divide the children’s time unequally, but in a manner that meets the needs of that particular family. Under certain circumstances, even if the parties have an agreement, that agreement is subject to the Court’s approval. You should also keep in mind that the terms of any shared custody agreement will likely remain in place for several years. You should consult an attorney who has experience in the Court that your case is in and can help you to understand the long term impact that the specific terms of your agreement will have.
A settlement conference is a pretrial conference where both parties and their attorneys come before a Judge. The judge will hear from both sides and make recommendations on the issues to try to keep a divorce from going to trial. Parties discuss the different settlement options and in some cases are able to come to resolution. This is beneficial because it keeps the divorce from incurring more fees at trial.
If the parties cannot come to terms in the settlement conference the Judge may set timelines for both parties to turn over relevant information, exhibits and witness lists. The unresolved issues of the settlement conference will be the focus of the trial.
Mediation is a process where you and your attorney (and your spouse and attorney) sit down with a neutral third party, whose only job is to help parties communicate to try to reach a settlement of their OWN. A mediator cannot force you to settle and will not impose a solution on you, but will help you and your spouse try to find your own solution. Mediation starts with an initial opening session with everyone together. After opening statements, the mediator may separate the parties and their attorneys into separate rooms at any time during the process or you may stay in the same room all day. All Courts require mediation before a final trial, except in drug/alcohol, physical/emotional abuse or other extreme circumstances.
The attorney’s will choose the mediator. If they cannot agree, the Court will appoint a mediator. Mediators charge different fees, approximately $400.00 to $800.00 per party for a half-day mediation and $800.00 to $1200.00 per party for a full day mediation. Mediators require payment by cash, cashier’s check or money order and they must be paid BEFORE the mediation begins. You are required to call the mediator directly regarding payment. Most mediators also require information so they are familiar with the issues in your case. Your attorney will complete this, but feel free to fax us anything you wish the mediator to know.
If you reach an agreement, the mediator (or your attorney) will help write out the parameters of the settlement you have reached. All parties will sign the Mediated Settlement Agreement that day. Then, one of the attorneys will be responsible for drafting the final version of that agreement for the parties to sign and file with the Court. A signed Mediated Settlement Agreement is IRREVOCABLE. The agreement is binding and cannot be changed after signing. So, please read the agreement carefully before signing, because you cannot withdraw the agreement and no provisions can be renegotiated.
In the unfortunate event your case is not settled, you will need to be present at the trial setting. Please call our office to confirm the date, time and location. Your case most likely will not be heard by the Judge on the day scheduled. Your case is on a two week trial docket and may be called at any time during that two week period. There is a high likelihood your case will not be reached on the first trial setting. There are approximately thirty other cases set for that same day. The oldest cases will be heard first. If the Court does not have time to hear your case, it will be reset in approximately 6 to 12 weeks. We have no control over the Court or when your case will be heard. It is just as frustrating for us as it is for you. Please understand we will do everything in our power to resolve your case as quickly as possible. If mediation is unsuccessful, please do not give up on trying to settle your case. We encourage you to keep thinking of ways to resolve your case, short of a trial.
Another method of resolving your case without trial is arbitration. It is similar to a trial and has the same effect as a trial verdict. The case is presented to an independent arbitrator who makes a decision on all outstanding issues. The decision of the arbitrator is binding upon all parties—just as if the case had gone to trial and received a verdict from the judge.
In arbitration the attorneys select an arbitrator, preferably someone who is a board certified family law attorney. In many cases a retired judge is selected as the arbitrator. The cost for arbitration is usually $600 to $1,500 per party per half day. This cost is in addition to your attorney’s fees. The difference between arbitration and trial is that trial takes place in the courtroom before an elected or appointed judge. Arbitration takes place at a law office or a law school courtroom and with a paid arbitrator. In arbitration there is no court reporter unless you pay and arrange for one. Again, this process is just as binding as a full blown trial.
The arbitration process is much quicker than a trial. When you go to trial in the court where you are assigned, you are added to the court’s trial docket with 30 or more cases set for the same day. On your trial date, you or your attorney will be expected to appear and be ready to proceed to trial. However, the court can reset your trial date. In most cases, the court will reset your trial date several times before your case will actually proceed with trial. This is due to the number of cases on the court’s docket. This process is very time-consuming and expensive and you have very little control over when your trial will actually begin. You will also rarely be able to complete the trial from start to finish without interruption. The court still has to conduct day-to-day business and will likely give you blocks of time over the course of several days, weeks, or even months.
In contrast, one of the biggest benefits of arbitration is that you are able to schedule the exact date and time that your trial will begin. Typically, the parties and their attorneys will decide beforehand how much time each party will have and how long the arbitration will last. You can schedule it to proceed from start to finish without interruption and to take place in a setting that is more accommodating than the courthouse.
Another benefit of arbitration is that it allows the parties and their attorneys to agree to a set of guidelines regarding discovery, presentation of witnesses, and admitting evidence. This flexibility allows you to streamline your case and saves a substantial amount of time and money. This is especially true in the case of expert witnesses, such as CPA’s or counselors. These experts need to be paid for their time and need to be booked in advance to be sure that they are available to testify when the time comes. When you proceed through the trial process in court, you normally pay an expert witness to be available for a trial date, only to have that date reset and to have to pay the expert witness again for the next trial setting. If the case proceeds to arbitration, the parties can schedule their expert witnesses to testify at a specific time so that their fees can be paid in advance, and they only need to be paid once for their time.
Even the most highly contested cases can benefit from the arbitration process. In fact, in our experience, these are the cases that benefit the most from going to arbitration. We have been involved in cases that would normally have taken over a year to take to trial and would have cost both sides a tremendous amount in attorney’s fees, but because we were able to agree to arbitration the parties saved many thousands of dollars and months of stress.
Once you and your spouse sign an agreement to arbitrate your case, all court intervention is suspended. All decisions will then be made by the arbitrator. After your case is presented to the arbitrator, you will usually receive a verdict within a day or two. A court verdict can take up to a month. The arbitration process is the same as proceeding to trial in that you are presenting your case to a third party to make a decision on the issues. However, through arbitration, you can save yourself and your family a substantial amount of time, money, and stress, and you can begin the healing process much sooner than if you had gone to trial in court.
If a settlement conference is not a viable option and mediation fails then your only recourse is a traditional trial. In this scenario we will spend our time collecting information pertinent to your case and preparing it for a hearing before a Judge or Jury. This option is more time consuming but it is sometimes necessary. Rest assured that Lockwood & Jones, PLLC will pursue every avenue to obtain the judgment that you desire so that you can move forward with your life.