Alternative Dispute Resolution in Divorce

Frequently people find themselves in the middle of a divorce and feel the entire process is out of their control. Emotions flare, expenses skyrocket, relationships can fall apart and the process can become extremely drawn out. It is not at all uncommon for a person going through a divorce to feel that they loosing control of the process and that everything is spiraling out of their control. When this happens, it can be frustrating and seemingly impossible for a party to regain control of the process as both sides fight over the minutia of the marriage.

As complex and as difficult as any contested divorce can be, it does not have to be and there are several options that litigants can pursue to make the process go faster, cost less and that will do a great deal to salvage future relationships.

While many people think the only option available is to run to the Court and engage in litigation, many, including attorneys, are not aware of a process known as Alternative Dispute Resolution, or ADR. In this article, I am going to address the several different ADR alternatives, those of mediation, collaborative law and arbitration. This is not intended to be an exhaustive list of ADR resources, but an overview of several different options available as alternatives to litigation.

Perhaps the most frequently used ADR process is called mediation. Mediation is a process where, in a non-judicial, non-courtroom setting, the parties come together in an effort to work together to bring their case to an end. Any issue can be mediated. As the process is non-judicial, witnesses are not frequently used, there are no rules of evidence involved, the process is non-confrontational and the parties have complete control over the outcome, meaning that an agreement is reached only if the parties want to reach an agreement. A typical mediation will have the parties, with or without attorneys, meet with a mediator.

A mediator is an individual, frequently a domestic attorney, who has received training and/or certification in mediation, meaning the mediator is trained in assisting the parties in reaching a resolution. Prior to the mediation, the attorneys or parties will have provided background information for the mediator to give them an understanding of the case and the issues to be addressed. The mediator has the latitude of deciding how the mediation will be conducted, but generally the mediator will meet with the parties and attorneys together and explain the mediation process. The mediator will then separate the parties and “shuttle” back and forth between the parties isolating issues, learning the parties’ concerns and attempting to bring them closer to a settlement. By engaging in this process, with the creativity and skill of the mediator, it is possible for the parties to reach an agreement without having to take the matter to trial.

Though the rules may vary from jurisdiction to jurisdiction, typically, mediations are non-binding. This means that even though an agreement is reached, until approved by a Court, a party could still back out of it. As well, even though a mediator, attorney, or any other person may realize that a pending offer may be incredible; the mediator cannot compel or force a party to accept an offer. Communications in mediations are also generally privileged, meaning that other than the fact that a mediation has occurred, no specifics of any offers or settlements could be used in Court, nor could the mediator be called as a witness. It is also typical for the parties to divide the cost of the mediator or work the payment for the mediator into their ultimate agreement.

In order for mediation to be successful, both parties have to approach the process in good faith. Some people wonder why they should pay for a mediator when a Court would decide the case for no cost. The answer is simple. Parties do not have to invest the time, nor do they have to pay for litigation preparation. Some Courts are even requiring that mediation occur before they will hear the matter.

A second option in ADR is the collaborative process. In this process, each party signs an agreement wherein they agree not to go to litigation, nor file anything contested with the Court. This removes the threat of litigation from the resolution process. The parties also work with neutral financial experts, counselors and divorce coaches. As well, each party has their own attorney, though this attorney is not intended to make the process adversarial. The totality of these professionals, including the attorneys, comprise the collaborative team, with the goal of resolving the case. The parties have joint meetings with their attorneys and other professionals, addressing the different issues of the marriage. The goal is for the parties to collaborate in reaching an agreement.

Each of the different professionals works on their specific area, sometimes with the parties, sometimes with the attorneys, to assist the parties in reaching a resolution. All issues are addressed in the process, even the allocation of the fees for the professionals. At times this process can be frustrating and trying as emotions can flare; however, the time frame for collaborative cases is generally far quicker than the traditional litigation process, even with the addition of the added professionals. The beauty of this process is that the parties play an integral part in determining the specifics of the ultimate agreement. Obviously there are cases where other factors such as abuse, substance abuse or child endangerment are present making such cases ill suited for this process, so cases must be evaluated carefully.

As well, the process cannot begin without the signing of an agreement which should require the professionals, including the attorneys, to withdraw from the case if it becomes contested or if either of the parties abuse the process. Nothing in the process is binding, but there are consequences should either of the parties withdraw from the process – essentially, the parties have to start over from scratch. The collaborative lawyers and professionals should be trained in the process which will ensure they are familiar with the issues confronting the parties. As with the mediation process, no outcome is guaranteed and neither the parties, the attorneys nor other professionals can compel any outcome.

Arbitration is another ADR process that is perhaps the most similar to litigation. In the arbitration process, the parties, generally through their attorneys, select a third party, usually an attorney, one who has a great deal of domestic experience, including litigation experience to act as the arbitrator. The arbitrator receives briefs and information on the case in advance to understand the issues facing the party. As well, the arbitrator will require that an Arbitration Agreement be signed setting out the guidelines for the process and protecting the parties and arbitrator from liability. Ultimately, the arbitrator will hold a hearing, albeit, a more informal hearing than would be had in Court. At this hearing, the parties will make their presentations offering testimony to the arbitrator. Witnesses will sometimes be called, though it is not unusual for witness’s statements to be submitted via sworn affidavits. The attorneys, as well as the arbitrator, may ask questions of each witness.

The arbitrator may sometimes contact witness and ask questions. This approach still allows the parties a great deal of involvement in the process, much more than at a trial, but the difference between this process and mediation and the collaborative process is that at the end of the day, when all testimony and all evidence is before the arbitrator, the arbitrator reviews it and applies the applicable law to the facts. This is where the process is very similar to an actual trial. Ultimately the arbitrator will decide all issues as they feel they should be decided and will then issue an order setting forth his findings which will be binding upon the parties. In most jurisdictions the decision of an arbitrator cannot be appealed. While generally more expensive than the other two ADR approaches, this approach is still far less costly than full blown litigation and allows the parties more input than a trial.

Any of the ADR processes allow the parties a vast degree more control and involvement in resolving their case. All have cost associated with them, but this will be money well spent. It also makes sense for anyone going through a divorce where they are fighting over property, custody, support or anything else, to explore ADR. It can never be held against you and given the number of fine ADR professionals out there, a party has nothing to lose.

In addition to these methods, there are a number of other approaches that fall under the ADR umbrella that afford a great deal of party control, expediency of time and savings of costs to the parties which will allow them to get through the process far better than they would had they pushed the matter to a trial. If you find yourself in the midst of a divorce, talk to your attorney about the different alternatives for ADR in your jurisdiction. Also, do a search on Google using the key words, Domestic, Divorce, Mediation, Collaborative Law, Arbitration or ADR together with your specific jurisdiction and you will find a wealth of resources on the issue.

This article is not offered as, nor is it to be construed, as legal advice, nor does it create any relationship, attorney/client or other, between the author and the reader. To obtain any legal advice, consult an attorney licensed to practice law in your state.

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