The Courtroom setting is daunting! The Judge listens to your case as presented very briefly, often exposing personal details of your life in front of a large courtroom full of people. It is almost a unanimous consensus that fighting a battle in Court is undesirable, and therefore, it is a last effort when other options for settlement have been exhausted. Fortunately, settling a divorce or custody case in the Courtroom with the Judge making the decisions for you is not the only option! Most often parties attempt to reach an Agreement outside of the Courtroom. But, people do not often have an ongoing Court case to begin with because they agree on every single issue, so it is normal to need some assistance and guidance in reaching an Agreement.
The couple can attempt to reach an Agreement by discussion with one another or between their attorneys if they are represented, but in the event of a deadlock, it can also be helpful to have a disinterested third party hear both positions in order to help move the parties toward agreement.
Settlement options outside of Court are often referred to as Alternative Dispute Resolution, or “ADR” for short. The most common forms of ADR utilized are:
- Mediation,
- Conciliation, and
- Arbitration
Each of the above has its own benefits explored in greater detail below. The benefits of using ADR to resolve divorce issues, child custody arrangements, and dividing up assets and property are numerous.
- Length of time: It can move much faster than a Court case, which is subject to the Court’s schedule and availability. Courts, overburdened with caseloads, can take weeks to months to address an issue. It can take years before a Trial date is set. That is a long time to remain living in a state of limbo on how your matter will be resolved.
- Greater satisfaction in the process: It can be less contentious, and give you the ability to digest information in a more calm setting and make decisions with a cooler head.
- Greater control: And further, reaching an Agreement gives you a level of control over the outcome of the proceeding that you do not retain if you give the matter to a Judge for decision.
A more in depth look at different forms of ADR, and the benefits each can provide is shared below:
Mediation
Mediation is a process in which the parties discuss their matters of disagreement with a trained neutral third person, who serves as the mediator. The mediator assists them in reaching a settlement. Mediation is informal and flexible. It can be arranged around your and the mediators schedule. Sessions can be held virtually or in-person. There is no waiting in a courtroom of people, it is usually in a comfortable location. Court attire is generally not required in a mediation, as the goal is not formality, but creating an environment in which the couple feels comfortable and able to discuss the issues at hand.
Mediation is non-binding. Therefore, it can give you a safe space to air out options. You do not need to enter into an Agreement you do not feel is favorable, which allows you to retain your rights on any issue of disagreement. However, because it is non-binding, it can also be frustrating if you feel you spent a lot of time and money in mediation for the other spouse to ultimately walk away from the table, and you end up right back where you started with a contested court proceeding. Therefore, if you feel the other party will not mediate in good faith, this may not be the option for you.
The mediator serves only as a facilitator, and has no power to render a resolution to the conflict. If you are looking to hire a mediator, look into whether they have experience in this field, and if they are an attorney or a professional Mediator. If they are not legally trained, you may want to ask questions about whether they have handled mediations in divorces or custody matters in the past. Most mediators will still advise you have an attorney of your own review the Agreement prior to its execution.
Conciliation
Conciliation is a process in which people with a dispute, with the assistance of a dispute resolution practitioner (the conciliator) identify the issues upon which there is disagreement, develop options, consider alternatives, and endeavor to reach an agreement. Very often for family law matters you will be looking for a former Judge or an experienced domestic relations attorney to act as your conciliator. A conciliator is different than a mediator in that they are generally a person chosen by the couple because of their specific skillset and ability to provide guidance and options for the couple to lead toward resolution. The conciliator’s job differs from the mediator in that their role is to provide more feedback than the mediator does. They give the couple feedback on what the conciliator believes a likely outcome would be if the matter is to proceed before the Court, in the hopes that it moves the parties closer to agreement. The conciliator encourages the parties to explore potential solutions, and can suggest creative problem-solving in order to assist the parties in finding an outcome they can mutually accept.
Conciliation, like Mediation, is non-binding. Similarly to Mediation, the conciliator does not typically hear from witnesses or seek evidence. While the conciliator may write up a Memorandum of Understanding between the parties in the event that the parties are able to reach an Agreement, he or she does not write up their own award or Judgment the way a Court would. Conciliation can be a very helpful process in reaching an Agreement, but it likely has an expense the parties need to pay upfront. Generally because of their level of experience, a conciliator’s hourly cost is higher than a mediator’s.
Arbitration
Unlike Mediation or Conciliation, Arbitration is a binding legal process which uses an arbitrator to settle a dispute. The arbitrator in this process is making the legal decision to settle the dispute in lieu of a Judge. Because by entering into arbitration, the couple waives their legal rights they would otherwise have going before the Court, it is a much more serious decision to make as a form of alternative dispute resolution, and is used much less frequently in divorce cases than other forms. It is more common that arbitration would be used in business and contract law than family law matters. You generally need to contract in advance of the Arbitration that you agree the result will be binding, and waive the rights you otherwise would have to proceed with a legal case. If a couple does decide to enter into arbitration, it could save time as the time compared to the lengthy process of waiting for a trial date from a Court. Also, the couple can choose their arbitrator, while you are subject to the Judge that is assigned to your case without ability to change in most court cases. Arbitration also can provide confidentiality that Court records cannot, as they are public record. However, arbitration decisions can be difficult to appeal or overturn if you do not like the outcome.
DISCLAIMER: This is not intended to be individual legal advice of any kind, and each divorce matter is fact-specific and state-specific. We advise you to seek independent legal advice as it pertains to you and your case matter.
