How can my divorce be resolved?
Separation or divorce is often a time of high conflict and heartache. Yet you are required to make difficult decisions that may impact the rest of your life.
One of the first things that you and your spouse need to decide upon is the type of dispute resolution process that best addresses your unique set of circumstances. Like many people going through divorce for the first time, you may not be well informed of the options available.
Determine which option would be most favorable to you:
1. Mediation
This involves the divorcing couples enlisting an independent third party (known as a mediator) to help them reach a divorce settlement. Mediations can be either private or court-ordered, and are intended to encourage couples to voice their opinions and reach a balanced settlement in a neutral environment. Mediations can involve lawyers attending the mediation session or the parties going to mediation alone.
The primary benefits of mediation are lower costs and the greater chance of reaching a balanced agreement that is favorable for both parties rather than the outcome resulting from litigation. This, in turn, helps it to be more likely for both parties to adhere to the agreement they have crafted together.
However, in order to remain neutral, mediators are not allowed to provide legal advice or recommendations to either party. As such, both parties still require independent legal advice to make sure they understand the implications of the agreement created. Whether or not the lawyers attend mediation, a party is benefited by having a lawyer guide them through the mediation process.
2. Arbitration
Unlike mediation, arbitration transfers the task of decision making from the two divorcing parties to a third-party known as an arbitrator.
The arbitration process requires both parties to meet the arbitrator, describe their goals and priorities for the divorce arbitration, and then leave the final decision to the discretion of the arbitrator. This final decision is usually binding, which means that the couple will have no choice but to follow whatever settlement is decided for them. However, any decisions made regarding custody of the children or child support are always modifiable.
One advantage of arbitration is that a neutral third party takes control of the case, ensuring that important choices pertaining to the divorce are founded on fact and logic rather than the emotionally influenced opinions of the divorcees.
Arbitration is not recommended if you would prefer to retain the power to renegotiate or challenge a divorce award.
3. Collaboration
This is the newest dispute-resolution option for divorcing couples. It engages an entire team of professionals to help resolve the case – including experts in child advocacy, finance, law, and mental health – to be shared by the divorcing couples while each party retains their own specially trained attorney to act as the facilitators of the process.
The lawyers on both sides work together to try to help their clients reach an equitable settlement without going to court. If they fail to reach an agreement, the entire team has to resign and the process starts over (with new lawyers).
Collaborative divorce is a very effective approach as different professionals are available to handle the legal, emotional, financial, and children’s concerns that arise during the process. It is best suited for couples who are able to negotiate in good faith and willing to spend the time and energy to reach a mutually agreeable settlement.
It is not recommended for couples who are unwilling to communicate, compromise, and commit to reaching a resolution. Moreover, collaborative divorce can be quite expensive and requires a degree of trust between the parties.
4. Litigation
Ideally, the parties are able to reach an agreement during the Alternative Dispute Resolution (ADR) process and go to court only for an uncontested divorce. However, if the case goes to trial on the issues, both sides have a chance to make their case to the judge – with or without representation. Since the couples were unable to reach an agreement, they rely on the knowledge and discretion of a judge to determine their family’s future.
Litigation fees can be very expensive, and couples who cannot reach an agreement on their own often struggle with the judgments delivered to them. Litigation is mostly used when other approaches to divorce dispute resolution have been unsuccessful.
Often couples want to avoid the risk of an unfavorable decision and costs associated with going to court, and so they try to reach an agreement using any of the ADR models mentioned above.
Discovering ways to settle your divorce can be difficult and should be discussed with an attorney.
Have any questions about this topic, please call me 202-872-0400.