So You’re thinking of Getting Divorced: Understanding Alternative Dispute Resolution and Why You Should Consider it.

When it comes to divorce, everyone has heard the time-honored phrases, “I’ll see you in court!” and “you’ll be hearing from my attorney.”  But what a lot of people don’t know are that there are several options for how to resolve your divorce that don’t involve going to court. Attorneys call the method by which a divorce is conducted “dispute resolution” and there is the traditional dispute resolution process of filing a Complaint for Divorce and going to Court where a Family Court Judge makes decisions regarding the issues that are in dispute in your case. And then there is the kinder, nicer, more-cost effective world of dispute resolution that attorney’s call alternative dispute resolution (ADR). 

Among these alternative dispute resolution options there is mediation (see my prior blog article on the top reasons you should mediate your case), arbitration and collaborative law process.  Each one of these ADR options are confidential and are more cost effective than going to court. Let’s take a look at all three:

Mediation:  The mediation process is an alternative way of resolving issues in a divorce case in a way that is fair and mutually acceptable to both parties. The mediation process is a confidential process that can be used to avoid going to court at all or that can be used as a tool to resolve all or part of a divorce case that is pending before the court.  The parties retain an independent mediator, who most often is a family law attorney, but who does not act as the lawyer for either party.  The parties establish the priorities and issues to bring to mediation and the mediator helps the parties work toward resolution of these issues by finding common ground and helping the parties understand the law as it applies to their case. The mediator can make suggestions to the parties, but these suggestions are not binding.  If the parties reach an agreement in mediation, the mediator can prepare a memorandum of understanding which can be reviewed by the parties’ individual attorneys and used to create a divorce agreement (oftentimes referred to as Marital Settlement or Property Settlement Agreement).  Mediation is beneficial in many ways, most importantly it takes less time and money than the traditional route of heading to court.

Collaborative Law Process:  The collaborative divorce process is an alternative way of getting divorced that allows parties to achieve a mutually acceptable resolution of all issues without going to court. The collaborative process, like mediation, is confidential and gives control over the outcome to the divorcing couple. In the collaborative process both parties agree from the start not to resort to litigation. All parties sign a “Participation Agreement” which includes an agreement that the parties will not go to court (i.e. litigate the case). The parties utilize a collaborative “team” approach that can include attorneys, financial professionals and divorce coaches to work together to help the parties reach a mutually agreeable resolution of their divorce case.

Arbitration:  Arbitration is a method of divorce resolution in which the parties opt to hire an objective third party family law attorney or retired judge to listen to the arguments of both parties on contested divorce issues or the divorce case in its entirety and to render a decision on the terms of the parties’ divorce.  It is similar to a court proceeding in terms of it essentially being a “hearing.” The parties can elect whether arbitration is binding or not binding. The arbitration award, or the arbitrator’s decisions, cannot be appealed with binding arbitrations unless it can be proven that the arbitrator was clearly biased against one spouse.  A spouse can appeal a non-binding arbitration award, but if the court agrees with the arbitrator, the losing spouse may be ordered to pay the other spouse’s legal costs in full.

To learn more about process might be right for you and your family or to discuss private mediation, contact Georgia Fraser, Esq. at Fraser Family Law Office, LLC at 609-223-2099