MEDIATION, ARBITRATION AND COLLABORATIVE DIVORCE
Whenever you file a Complaint for Divorce, you must sign a statement that you have been informed about your options for Alternate Dispute Resolution. These are Mediation, Arbitration and Collaborative Divorce. Each enables you to resolve your differences outside the court house. There are excellent reasons to enter into Mediation, Arbitration or Collaborative Divorce, including privacy, confidentiality and convenience. In each of these alternate dispute options, you can schedule the proceedings at mutually convenient times. You do not have to pay your attorney to sit and wait your turn in the courthouse for other cases that are scheduled for the same day. Judges have an obligation to report people who failed to report income to the IRS or the county prosecutor. That does not occur in mediation, arbitration or collaborative divorce. Not all judges have experience in Family Law. They may never have practiced it and may be new to their family law assignment. In mediation, arbitration and collaborative law, you and your spouse, along with your lawyers are able to choose who will assist you in resolving your case from a group of interested and experienced professionals.
How are the three brands of alternate dispute resolution different?
Mediation is a process of negotiation with the help of a mediator who helps come up with solutions for resolving your disputes. There is no requirement that lawyers be present, but usually it is a good idea, especially if there is a power imbalance in your relationship. After identifying the issues in dispute, the mediator helps generate options for resolution. It is a less adversarial process than litigation. Often in mediation, you and your spouse can reach agreements that a judge would not be able to order if the case were tried. However, mediation is typically conducted vis a vis the applicable law. In most cases (except where there has been domestic violence resulting in a Final Restraining Order), one session of custody mediation and two hours of economic mediation is mandatory for every divorce that is filed. Economic mediation is scheduled six to nine months after the divorce has been filed. Mediation is more likely to be effective if spouses embark on the process early – before a win-lose mentality sets in and before money that could be used for settlement has been spent for lawyers to wait in court. If the case is resolved, the mediator drafts a document called a Memorandum of Understanding and the lawyers then prepare a formal agreement. The mediator is neutral and the goal is to mediate an agreement, not to protect your rights or your spouse’s rights. It is your job and your lawyer’s job to decide if the agreement is fair.
Collaborative divorce is even a less adversarial approach than mediation. It is a problem solving exercise where the focus is on what is best for the family and its members. It involves other professionals such as psychologists, divorce coaches and financial planners. It is less focused on what the law provides. Often, creative solutions come from the collaborative process. However, if one of the spouses is not forthcoming or there is a high level of anger, it is usually unsuccessful. A unique aspect of collaborative divorce is that in the beginning, the lawyers and clients sign an agreement that if the process fails, the lawyers will not follow the case to litigation. They must resign and both spouses must get new lawyers.
Arbitration is the most formal and legalistic type of alternate dispute resolution in that a third party makes decisions on all of the disputed issues, just as a judge would do. The arbitrator(s) will hear testimony under oath and consider documents that are presented. Often, the rules of evidence are relaxed. If the issues are purely economic, the proceedings need not be recorded. However, recordings are required in custody arbitrations. One advantage of arbitration is that the parties can choose an arbitrator that both your attorney and your spouse’s attorney know to be an expert. A second advantage is that it can be scheduled at everyone’s convenience. If the arbitrator sets aside the day, you can be confident that there will be few interruptions and much more will be accomplished in a day. You will probably receive a decision, called an “arbitration award” more quickly than you would if you had a trial in court. For some people, the privacy aspect of arbitration makes it very attractive. Usually, arbitration is binding and the grounds for appeal are more narrow than if a judge heard the case in court.
People worry about the cost of alternate dispute resolution. The lawyers and the mediator, arbitrator or facilitator has to be paid and it is easy to think that paying more people will cost you more so why not go to the judge for free. The reason is that the family courts of our state are very crowded and backlogged. Usually, the costs of delays and waiting in court more than offset the cost of hiring a professional. Pursuing mediation, arbitration or collaborative divorce often accomplishes a result that is more expeditious and responsive to the needs of you, your spouse and your children than bringing your case to court.
The information in this article is not intended as legal advice. For legal advice, you should consult your attorney.