The Law, Courts and Legal Process

Often, people resort to litigation as a means to resolving differences between themselves. The court process is based on well-reasoned argumentation, authoritative sources and hard evidence. Almost all court cases will have two parties, the prosecution or plaintiff and the defendant. A case about business and law might require a specalist lawyer, court or judge. You have an impartial party - the judge - who passes down a verdict which should be accepted by the parties. You also have an appeal process whereby anyone who's dissatisfied with the verdict can have the case heard by a superior court and a different audience. The alternative to litigation - commonly referred to as alternative dispute resolution (ADR) - makes use of informal procedures and is largely voluntary in nature. Mediation, conciliation and arbitration are ADR methods that have worked for some, and successfully too. But of what importance are all these processes to businesses and divorcees? Let's take a walk...

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Business And Law: Courts Or Mediation?


The standards are crystal clear. The court process is largely coercive in that it's not up to you whether to appear before a judicial officer or not. As such, a clear difference between mediation and collaborative law is that, in the former case, parties may not always have legal representation. In the latter case it's a must to be represented by counsel in the form of an attorney. It's important to note that collaborative law -however more rigid- has a systematic information exchange structure that's somewhat similar to regular divorce litigation in the courts. This makes it an efficient, thorough and realistic process. Not to say that mediation is of no value. Parties to a dispute can further smoother over their differences by resorting to mediation, but only at the end of a litigation process.


Be Absolutely Clear!


You want to be certain from the outset: litigation, or ADR? As a business, your ultimate objective is to make profits, right? It serves no purpose to spend £20 000 in litigation costs only to recoup £21 000. Most people turn to mediation when the court process is at an advanced stage. By then, thousands have been spent on legal fees already and relationships have been strained, or perhaps even wrecked. This makes mediation less effective than it would ordinarily be. Collaborative law - though formal - allows parties to discuss the dispute in an informal setting, thereby minimising costs, quickening resolution and saving money, while maintaining a healthy rapport at the same time.


The Arena Of The Dispute


Another notable difference relates to the arena for dispute resolution. Litigation occurs in the courts. Whilst mediation presupposes the separation of parties -during which the mediator shuttles back and forth between them- with collaborative law, everyone is fighting in the same corner. Deliberations don't take place behind veils of secrecy, which, in most cases, contributes to a protracted dispute settlement. Documents that require disclosure are simply brought out and any promises are attested to in the presence of all. By so doing a dispute doesn't go the way of the disputants: into dereliction, decline and debt.


More Than A Group Effort


This last difference is generally taken for granted, glossed over as if it's of no significance. CL encompasses concerted toil, it requires the resilience to make amends and it integrates a team effort that allows the sharing of ideas. Never underestimate the value of having legal experts sitting across the table whose knowledge is at your fingertips. Moreover, the feedback is immediate. So what's there not to like? Nothing!


A Passing Note.


Mediation entails the effort of one person, who is supposed to find common ground by listening to both sides. In most instances, there's no lawyer to share his infinite legal wisdom, skill and persuasive diplomacy. Be that as it may, it is useful if you can incorporate an industry expert whose specialised knowledge can provide great insight on the best way forward.