The subject of divorce has seen many changes over the last half-century. In addition to becoming more common, there are now many more ways of going about the process. What used to be exclusively adversarial and dependant on courtroom proceedings for its outcome is now increasingly cooperative, and much of it can take place out of the public eye.
Couples or individuals contemplating divorce can choose from four predominant means of resolving their differences and ending their marriage. In addition to traditional litigation, three forms of ADR (alternative dispute resolution) are popular: mediation, collaborative law and arbitration.
Regardless of which method an individual may choose, an attorney will be able to help him or her navigate the process and protect his or her interests. Therefore, it’s wise to choose an attorney who is familiar with the variety of options.
Litigation is the traditional route, in which both parties are represented by attorneys in court proceedings. Although very few divorces today require an actual trial, traditional divorces do require a number of procedural steps, including court filings, meetings with the judge and opposing lawyers, and the like. As a result, litigation is generally the most expensive approach to divorce. Despite its costs and time, litigation may be the best option for those who cannot come to agreement over division of property or custody of children.
The principal difference between arbitration and mediation is that mediation is not binding on the parties. The mediator, a neutral third party who may or may not be an attorney, meets with the couple both individually and together to better understand what is most important to each and how they might come to agreement. After the parties have come to agreement on the terms of the divorce, the mediator presents the attorneys with a document outlining the terms, which the respective attorneys then use to draw up the final divorce agreement.
Like arbitration, mediation takes place on a schedule of the parties’ choosing and is not open to the public, so it avoids many of the same litigation problems as arbitration, with the principal difference being that it is not binding on the parties.
3. Collaborative Law
A relatively new development in ADR, collaborative law (also known as collaborative divorce) envisions a cooperative approach between the parties. Both sides agree to openly share and disclose information, and the attorneys agree not to litigate the case if the process is unable to resolve all the differences. That means that if the collaborative law process does not result in an agreement, the parties must hire new attorneys for any subsequent litigation. Therefore the attorneys involved in collaborative law divorces have no incentive of further litigation (and hence more money) that would prevent them from coming to an agreement that is in the best interests of both parties.
Although each side is represented by an attorney, collaborative law employs a team approach when it comes to outside experts involved in the case. In other forms of divorce, both sides hire their own experts such as financial analysts or child psychologists, which drives up the cost of litigation. In collaborative law, both parties share these experts, who work with the couple and the attorneys to more quickly and efficiently obtain a resolution.
In arbitration, the parties agree ahead of time to be legally bound by the decisions of a third-party arbitrator, who functions essentially like a judge. (In fact, retired judges often serve as arbitrators.) The two sides each present their evidence, witnesses, et cetera just like in a courtroom, but the arbitration proceedings can be held at a time and place convenient to the parties, rather than waiting for their turn to come up on the court docket. The conclusions of the arbitrator are then written up and filed with the local court to conclude the divorce process.
One advantage of arbitration is that it isn’t a public proceeding like a trial. Thus the parties can discuss sensitive financial or personal matters without the worry that the information will become public. Arbitration can be used for all aspects of a divorce, or on a more limited basis to resolve certain sticking points.
Generally speaking, the decisions of an arbitrator cannot be appealed to a higher court (except for certain child custody issues, which must always be based on the best interests of the child and can thus be appealed on those grounds). Although this is somewhat inflexible, it almost certainly brings a faster resolution.
The divorce process now offers parties a myriad of options. To discuss a pending divorce and which process may be best for your situation, contact an attorney who is experienced in all divorce options.