Traditional Litigation
What is the traditional litigation model?
In the traditional divorce, both parties hire attorneys. The attorneys provide legal advice and represent the positions of their client in negotiations and court hearings. This model is an adversarial process in which each attorney advocates positions based on the personal needs and viewpoints of their client. The parties communicate through their attorneys, rather than directly with one another, regarding their positions, proposals and counterproposals on the issues in their divorce. The process may involve the use of formal legal procedures, known as "discovery" to secure financial and other relevant information. This may include the use of depositions (a formal taking of testimony before a court reporter) and the subpoenaing of documents or other material believed to be relevant to the issues. Each party may hire experts to support their positions. Experts may include psychologists, real estate and personal property appraisers, business valuation specialists, accountants, and other investigators. If the parties dispute the legal custody or physical placement schedule for their children, the court will appoint a third attorney, called a guardian ad litem, to participate in the case as an advocate for the "best interests" of the children. Issues can still be resolved in the litigation model by means of an agreement of the parties which is submitted to the court for approval, and this often occurs in litigation model cases. Unfortunately, however, it is not uncommon for the parties to be unable to reach agreement until after substantial time, money and emotion has been spent in conflict. Ultimately, if agreements are not reached on any one or more issues, the parties and possibly other witnesses would need to testify before a judge, who would then make a decision on each disputed issue.
| Advantages | Disadvantages |
| 1. Very well defined and structured process. 2. The ability to compel the cooperation of the opposing party and third parties in providing information. 3. Availability of formal legal tools to enforce compliance with the law and court orders. 4. The possibility for only one attorney to be retained if one party wishes to be represented and the other does not. |
1. The adversarial nature of litigation might cause either or both parties unnecessary stress or anxiety and/or might contribute to a polarization of their positions. 2. Often the lack of any way for the parties to directly participate in an effective fashion. The process is ultimately centered on “the law,” as applied by judges and court commissioners and as presented and argued by lawyers. 3. Litigation is a public process. Most documents and court hearings are open to the public as a matter of law. 4. The pace and timing of the steps needed to reach resolution are often largely subject to court dockets and other factors beyond the parties’ control. 5. The parties have little control over the outcome if a contested decision is sought. Family court commissioners and judges are often quite limited in what the law allows them to do. Outcomes are often “win-lose” at best, and once a decision is rendered, the outcome is imposed even if it is far from what either party would have preferred. 6. Potentially very significant and rapidly incurred cost. |