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Alternative Dispute Resolution: A Different Road to Divorce

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Most people imagine divorce to be a battle of wills, fought out in court, amongst ferocious divorce lawyers and their respective clients. While litigating in court is a path some files take, it is not the only way to resolve a conflict and achieve resolution. Alternative Dispute Resolution (“ADR”) refers to any means of settling disputes outside of court. ADR typically includes, negotiation, mediation, and arbitration. As burgeoning court queues, rising costs of litigation, and time delays continue to plague litigants, more people have been taking a difference path to divorce through ADR.

This blog will outline 3 of the most common forms of ADR: Negotiation, Mediation and Arbitration.

Negotiation is an ADR method that is almost always attempted early on in every file. It allows both parties to exchange their positions on the different issues in hopes of determining whether there is any common ground. The advantages of negotiations are the low legal cost and the control each party has in the process. However, negotiations will only be successful if there is enough common ground on the issues to reach a settlement.

Mediation is one of the most popular and successful forms of ADR. It involves the parties meeting with a neutral third party (mediator) who assists negotiations along in hopes of reaching resolution. If a settlement is reached, the parties will (with the assistance of a mediator) sign an agreement in writing, making their settlement binding.

There are many advantages to mediation:

  • You can choose a mediator who is specialized in the area of law relating to your conflict
  • It usually assists in decreasing/avoiding the conflict that occurs in litigation
  • It is less expensive than litigating in court
  • The parties have some control over the process and can design more creative settlement that may not be available to them by way of litigation
  • There is flexibility in terms of timing in that you are not limited by the dates the court may have an opening

A disadvantage to mediation is that sometimes a mediation is attended for a full day (or longer) and no settlement is reached. As the mediator cannot impose any decisions on the parties, a settlement will only be reached if both parties agree. Another disadvantage to mediation is that since mediation is a voluntary process (i.e. both parties must agree to attend and participate), if one party chooses to no longer participate they may leave/terminate the mediation at any time.

Arbitration is another form of ADR. Arbitration means that you are hiring a neutral third party by way of contract to act as a private judge. It also means that you are waiving your right to ever litigate the issues submitted to arbitration in court. As an example, if you submit the issue of spousal support to arbitration, you are waiving your right to litigate the issue of spousal support in court. Like mediation, both parties have to agree to enter the process. Unlike mediation, once you are in the arbitration process, one person cannot choose to actively stop participating in it.

Arbitration can be as expensive and as time consuming as litigation, but it has the following advantages:

  • Arbitration is in a private forum whereas court is a public forum
  • You choose your arbitrator whereas you never get to choose your judge
  • Timing/scheduling is much more flexible in arbitration (for example, an arbitrator may hear something afterhours, when a court would not)

It is important to note that a decision made by an arbitrator is as binding as a decision made by a judge. That being said, there are certain narrow issues that an arbitrator cannot arbitrate as those powers are only conferred upon judges. It is important to speak with a lawyer to determine if your case involves any of these issues.

There are several other forms of ADR that can be applied to different types of situations. Before choosing the path to divorce that is right for you, it’s prudent to speak with a family law lawyer to determine what the right strategy is in your case to achieve your desired objective.

About the Author

Cheryl Goldhart and the team of lawyers at Goldhart & Associates work exclusively in the area of family law. They have the experience and dedication to assist clients achieve their objectives.

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