Divorce:

Alternative Dispute Resolution

Alternative dispute resolution (ADR) provides a way of resolving a divorce case before it goes to court; the three primary methods are mediation, arbitration, and collaborative family law.  The effectiveness of ADR in your particular case depends on 1) the extent to which you disagree with your spouse about issues of child custody and property division and 2) the extent to which you are willing to work to resolve the disagreements you have. 

One of the benefits of ADR is that the process is usually less confrontational and more relaxed than the traditional court setting.  Mediation and collaborative family law enable you and your spouse to be actively involved in the major decisions, rather than having a judge or someone else decide them.  Arbitration, which is not commonly used in divorce cases, is a more formal and organized ADR option, in which a neutral third-party makes decisions after listening to both spouses' evidence and arguments. His or her decision is not necessarily final, and the parties may still be able to resolve key issues before a court at a later date.  

Mediation

While a lawsuit must be filed in order to dissolve a marriage, it is no longer necessary to follow the traditional path of court room litigation in order to work out the details and terms of the divorce. Mediation voluntary agreement of the disputing parties is promoted and facilitated by an impartial third-party mediator. He or she encourages communications, emphasizes understanding, focuses the parties on their interests, and seeks creative solutions to problems, in order that the parties might reach their own agreement.

Mediation, either voluntary or court mandated, is the predominant form of dispute resolution for divorcing couples. Its benefits lie in the involvement of the disputing couples, reduction of costs and arguments associated with divorce, protection of children from parental conflict, and then general benefit of resolving an issue outside of the court room: settlements are quicker and confidentiality is preserved.   

The goals of the divorce mediation process are to:

  • Create an fair (though not necessarily “equal”), legally sound, and mutually acceptable divorce agreement
  • Avoid the costs, both actual and psychological, that often accompany litigation
  • Decrease antagonism and post-dissolution controversy.

Mediation is obviously not right for every divorce case; problems arise when one party is unable to express opinions adequately or without fear, when one or both parties refuse to compromise or mediate in good faith, and when the financial issues are too complex for the couple to handle.   

Divorce cases are often referred to mediation by the court, though they may also end up in mediation based on the parties' written agreement. In the event that the court refers a case for mediation, it informs the parties, who usually have an opportunity to object if there is a reasonable basis, such as family violence.

The first step is then to find a mediator.  The court may appoint a mediator, or allow the couple to chose a qualified one; many have court-annexed or county mediation centers.  A mediator could be a lawyer or a non-lawyer.  The fees vary from mediator to mediator and from case to case; they may be assessed on an hourly basis, or by the day or half-day. Mediators assist the parties meet, examine options, and negotiate a mutual settlement to resolve their dispute; they do not determine who is right or wrong, instead simply trying to find an answer that works for everyone involved.   Things to consider when seeking a mediator are his or her mediation training, experience, and specific knowledge of family law, as well as general style and mediation philosophy.

Often, mediation begins with a "general caucus" where the parties and the mediator meet in the same room; there is not formal discovery process. The mediator establishes the ground rules in an "agreement to mediate." If the mediation is court-mandated, the court order will often contain or refer to the "rules of mediation." One of the most important rules is the requirement for confidentiality; all issues revealed or occurring during mediation, and any record made during the process, are confidential and generally may not be disclosed to anyone unless both parties agree to the disclosure. Often, the mediator must also maintain confidentiality.

The mediator will then explain the mediation process. The parties or their attorneys may then make opening statements to identify key issues and clarify perceptions. Many mediators will encourage the parties to begin their conversation during the general caucus.

In the event that the parties are antagonistic or extremely emotional, the mediator will separate them and go between them in "private caucuses." A private caucus is a conference between the mediator and one party, without the other party being present. The mediator passes offers and demands between the parties. Again, conversations between a party and the mediator during private caucus are confidential unless a party authorizes the mediator to disclose information to the other side.

Finally, the parties in a mediation are not required to reach an agreement, and sometimes they do not. Regardless of whether the case is settled or reaches an impasse, the mediator will meet with the parties together at the conclusion of the session. If the case has not been resolved, the mediator will probably encourage further mediation sessions. In the event that the case does settle, the mediator will encourage the parties to sign a settlement to memorialize the agreement. A written settlement agreement is a contract between the parties, which is generally enforceable in the same manner as any other written contract.  There is no record of the mediation session, and the only document produced is the settlement (or mediation) agreement.

If settlement is not reached the parties may decide to litigate.

Collaborative Law

A new trend in alternative dispute resolution is the use of the collaborative law.  The concept is a structured and cooperative out-of-court approach to dispute resolution that allows those in a legal disagreement to cooperate with their attorneys in attempting to reach a solution in a positive, results-focused setting. Divorce can be finalized and all support and property issues can be resolved without stepping into a courtroom.

The hallmark of the collaborative law process is the participants' commitment to resolving a divorce and all related support, custody, and property disputes in a constructive and reasoned atmosphere. The spouses sign a written agreement, in which they swear to use good faith and fairness in negotiating a resolution, and to disclose all information and documents relevant to the issues at hand. The attorneys show their commitment to the process by adhering to a fundamental collaborative law principle: if either party terminates the collaborative process in favor of traditional litigation, both collaborative law attorneys must withdraw from the case.

Both spouses and their attorneys meet in a neutral setting, such as an office or conference room, and begin the negotiation process. The key to these negotiations is that all persons present are expected to participate in a positive and open discussion that has an agreeable resolution as its final goal. This from similar ADR methods like arbitration and mediation in that there is no neutral third party at the center of the collaborative process. The attorneys participate in the collaborative process as representatives of their respective clients, but also act to support and encourage an agreeable solution for all parties and families involved.

As negotiations progress and the parties find it necessary to do so, they may agree to hire counselors or experts to assist with accounting matters, asset valuation, or other technical issues that might arise during discussion of support obligations and property division.

In the majority of collaborative law negotiations, the parties are able to arrive at a settlement agreement resolving all disputes at issue.

The benefits to this process are obvious; it provides a cooperative approach to problem solving; it is usually quicker and less expensive method than traditional family law litigation (though it could be more expensive if the parties are unable to complete the process and then decide to pursue litigation); it also spares the couples the stress of the courtroom.   

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