Divorce: Alternative Dispute Resolution Options
As any divorce lawyer knows, a full-blown contested divorce can be emotionally and financially devastating. And many couples who fight it out in court continue to litigate over child custody, visitation and support long after the divorce is final.
For some, a court battle is unavoidable. But for many couples, alternative dispute resolution offers a way to have some control over the outcome of a divorce and feel more satisfied with the result. Couples that can negotiate divorce settlements may have an easier time co-parenting and getting on with the rest of their lives.
Some family lawyers choose to develop a practice geared toward alternative dispute resolutions such as mediation or collaborative divorce. Others will be better able to serve their clients if they understand these processes and can identify couples who might benefit from them.
In Mediation, the parties voluntarily meet with a trained mediator and try to resolve their divorce and custody issues. Divorce mediation may span several sessions as the parties try to reach an agreement that both of them can live with. Although the parties may consult with their lawyers during the process, lawyers typically do not attend divorce mediations.
Mediation encourages couples to air their concerns and listen to one another. It seeks to reach an agreement that makes sense and is as fair as possible to both parties. Mediation can resolve the entire divorce, or it can be limited to certain issues, narrowing the scope of the trial. Good candidates for mediation include couples who have relatively simple divorces, couples who are basically on good terms with one another, and couples who cannot afford costly litigation. Mediation may be a poor alternative for couples in abusive relationships.
Collaborative Divorce takes a team approach to resolving divorce and custody issues. The parties and their attorneys meet and collaborate with other experts, such as child custody specialists and accountants, to reach a result. Participation is voluntary, and the parties retain the right to withdraw and proceed with litigation. If that happens, the parties are usually not allowed to use the attorneys and experts who participated in the collaborative process.
Attorneys who represent clients in collaborative divorces have usually received training in collaborative methods. Collaborative divorce may be a good alternative for clients who are committed to resolving their disputes, but have some issues that require input from experts. A collaborative process can, however, become expensive if the parties fail to reach agreement and have to start the litigation process over again with new lawyers and experts.
Arbitration is a relatively new way to resolving divorces, and it is not available in all states. The parties must agree to have their case resolved by a neutral arbitrator, and they typically must agree to be bound by the arbitrator’s decision. The arbitration hearing is private. It is often faster and less expensive than a court proceeding, making it a good option for couples with limited finances. Arbitration can also be a good choice if a couple has agreed on most issues, but has one or two that need to be resolved by a neutral third party.
Not all divorces are suitable for alternative dispute resolution, but by being aware of the options and identifying clients who are good candidates, family lawyers can increase the chances that their clients will be satisfied and able to move on with their lives.