Mediate or Litigate


We can help to resolve any issue through mediation, or prepare you for litigation if mediation is unsuccessful or not an option.

Here is what you need to know:

You now have a choice in the dispute resolution process... Will you mediate or litigate?

Intake form for MEDIATION request
Intake form for APPEAL request

What is mediation?

Mediation is an alternative to taking a matter before a Judge in a contested hearing. It is a process where you and your opponent meet with a third-party neutral to negotiate a resolution that satisfies the needs of both parties. While this sounds like the antithesis to the battle for rights that occurs in the Courtroom, mediation has the amazing capacity of finding a mid-point where both parties can walk away with a livable solution and get on with their lives. If done properly, mediation is cost effective and more time effective than litigation. Once the mediation is complete, you will need the paperwork drawn up and a final court date on your divorce.

What you need to know about the mediation process

Mediation may occur with or without attorneys being present for each side. The mediator may be an attorney who has received special training, or it may be a person from another field of expertise such as counseling. An attorney-mediator will have more knowledge of the law and a counselor-mediator will be more sensitive to the emotional needs of the parties. You may find that you need both.

If you are going into mediation without separate attorneys for both sides, you will want an attorney-mediator at some point. The attorney-mediator will be able to instruct you on the elements of the law and the parameters that would be set by the judge. The attorney-mediator will also know some of the nuances of each particular judge. It is necessary during mediation to talk about legal issues such as property division, alimony and child support. A counselor-mediator will fall short in giving you legal support. However, keep in mind that the mediator will NOT represent you during the mediation or in court.

You may also find that a counselor-mediator will help you understand the emotional process that you and your children are going through. If children are not acting badly during the divorce they are probably hiding their feelings. Remember, you and your spouse have probably been thinking about a divorce for a year or more, but your children probably haven’t. Because this is new to them, your children will wonder what happened and will feel incredibly insecure. An attorney-mediator will fall short on working through the emotional process with you and your children. Mediation should be done in segments of a minimum of two hours each. Sometimes, parties want to set aside a whole day and keep hashing through the problem until they feel that they have fashioned a reasonable agreement. The key to success in any mediation is the desire to resolve and move on. If you approach mediation with a "winner takes all" attitude, it is certain to fail. Once you accept the inevitable dissolution of the marriage relationship, you will be able to fashion a new lifestyle that will give you both freedom and security.

What is litigation?

Litigation is the process of filing a contested action against your spouse (or some other person) and preparing a case to be heard in front of a judge or jury. Lawyers spend years learning the complicated process of collecting competent evidence, and learning the rules of evidence and court procedure. As a litigant, you will never understand the intricacies of this process, however we will teach you enough about these rules to get you through litigation.

You will need to rely heavily on your attorney’s ability to manage this process and prepare you for trial. It does not hurt for you to ask questions about the witnesses you will want to call or the documents that you will want to show the judge. However, be prepared for your attorney to say things to you like, "That’s hearsay." "That’s inadmissible." "That’s irrelevant." You’ll wonder what they are talking about and even your attorney’s explanation will leave you puzzled. It is important that you follow the advice and counsel of your attorney in preparing for a trial. Litigation is time-consuming and expensive. However, sometimes it is the only way to bring a matter to conclusion. If one party insists that they have been ‘wronged’ and that a judge is the only person that will award them a claim against the other person for ‘wronging’ them, litigation may be the only answer. It is not unusual for a contested divorce in the middle Tennessee area to take over a year and cost each party thousands of dollars.

What you need to know about the litigation process:

The litigation process involves meeting with an attorney to prepare and file your original complaint against the other party. The opposing party will be served by the sheriff or private process server. The opposing party will have to answer the lawsuit and will often file a counterclaim against you. You will have to answer the counterclaim. The second phase of the process is called discovery. You and your attorney will decide what information and documents you need from the other party. A written request called an "interrogatory" will be made for this information and it will take thirty to sixty days for you to get a response from them. Your attorney can also request that certain documents be provided for you to review. This is called a "request for production of documents".

After the initial discovery is complete, you will commence depositions and the preparation of any expert testimony needed for the hearing. All of this must be done before the judge will give you a court date for the final hearing. Each judge varies, but it will take about four months to get the date for your final hearing.

What is an appeal?

If either party is dissatisfied with the judge’s ruling, they may appeal to the Court of Appeals. The Court of Appeals does not take testimony, but may review any portion of the entire transcript of the proceedings that your attorney files with the Court of Appeals. The attorneys will also have to file a written memorandum of law, called a "brief". Both attorneys will appear before the Court of Appeals to argue why they believe the Trial Court made an error. The Court of Appeals will take several months to respond and this whole process takes about one year. The appellate attorney does not have to be the same attorney you used during your initial hearing. An appellate attorney will charge from $6,000 to $15,000 for an appeal in a typical case.

If either party is dissatisfied with the Court of Appeals, they may ask permission to appeal to the Supreme Court of Tennessee. The Supreme Court will only hear a case if they believe that a current law is in error or the current law is too confusing for trial judges to interpret. If the Supreme Court takes a case, this process could also take up to one year. The attorneys at LCFLC will consult with you on the issues in your case that could be raised in the Court of Appeals and give you more detail on the time and cost. Remember, in the litigation process, you will also have the costs of court reporter fees, transcript fees, expert fees, and court costs.

Intake form for APPEAL request

Family Law Case Review



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