Traditional Contested Court Proceedings
Occasionally the best option is to follow a more traditional trial based route.
Mediation is, in general, the fastest and "cleanest" way to solve a dispute when compared to a traditional court proceeding.
Pros of Mediation
- Speed - Mediation is almost always the fastest way to a resolution.
- Cost - Mediation is almost always the least expensive way to a resolution.
- Confidentiality - Mediation is confidential.
- Flexibility - Make It Happen Law mediates cases both with parties who have attorneys and those who are not represented by attorneys.
- Results -
- Mediation has very high rates of success; this means that the parties follow through with settlements. The reason for this is that everyone feels like the/she was taken into consideration and was part of the decision. Thus, the parties who choose mediation are more likely to comply.
- Mediation is vastly more flexible and creative than traditional court proceedings and remedies. If you can dream it and the other person agrees (and it is not illegal), we can probably write it in a mediated agreement.
- If mediation fails, the parties can always go on to a traditional court proceeding
Cons of Mediation
- Mediation requires that both parties participate.
- There are issues that cannot or should not be negotiated. Certain issues such as abuse (physical, emotional, sexual) are simply too serious to be handled in private mediation. There are times where the court needs to step in.
- Mediation is about compromise. It is often said that in a successful mediation nobody wins but nobody loses either. If you are looking for that "grand slam" win, mediation is probably not the right solution for you. You must decide how much of a risk taker you are. No one can guarantee what the result of a trial is going to be. You might win but you could also, just as easily, loose.
Pros of a traditional court proceeding
- Mediation generally only works if both parties are strong enough, emotionally, to negotiate with each other. Unfortunately, there are circumstances such as cases of spousal abuse which may make that impossible. The formal nature of court creates the most distant relationship possible between two parties. Further, participation in mediation is voluntary whereas participation in the traditional court process is required. If one party refuses to participate in mediation often the only option to go down the traditional court path.
Cons of traditional court proceedings
- Time - A traditional contested divorce or child custody dispute can take years to fully resolve. Although some issues have a terminal ending where either one party "wins" or "loses," other issues like child placement can be brought before the court over and over again until the child becomes an adult.
- Cost - A traditional contested court proceeding with attorneys will always cost more than a mediation where the parties can come to agreements outside of court.
- Lack of confidentiality - Wisconsin is an open records state. That means that, with the exception of certain details about children, most of what goes on in court can be accessed by anyone who goes to the courthouse and asks for it.
- Animosity and hostility – Court proceedings have the potential to lead to animosity and hostility. One of the hardest things for many people, especially those with children, to accept is that for a number of reasons you must continue some sort of communication/relationship with the other party long after the court has issued its decision(s). Even if you are in a position to deliver a "knockout blow" to the other party, it may not be in your best interests in the long run to do so.