Alternative Dispute Resolution
You can resolve your divorce through avenues other than litigation. Methods include mediation, collaborative law, and arbitration.
What is mediation?
Mediation is a non-binding process whereby parties meet with a neutral mediator either with or without counsel in an attempt to resolve their divorce. Some couples are candidates for mediation and others are not. Uncomplicated cases are best served by mediation as well as cases where the parties trust one another and are amicable. Mediation can also be useful following litigation if you remain apart on one or two issues that can be potentially resolved with the assistance of a mediator. Since the process is non-binding, either party can back out which then requires the other party to file for divorce to move the process along. You are not required to have an attorney to mediate although you will be advised to have an attorney review any settlement on your behalf. Successful mediation is much less costly than litigation. Conciliation is another term that is employed and it essentially means heavy-handed mediation where the mediator’s opinion is provided to assist with resolution.
What is collaborative law?
Collaborative law is a wholistic and therapeutic approach to divorce that is intended to resolve a divorce in a collaborative matter without intervention by the court. Parties must sign a collaborative law participation agreement and be represented by collaborative lawyers. Parties can jointly retain experts in this process to assist with resolution. A collaborative process terminates when a party gives a record notice that the process is terminated, or seeks relief in a tribunal regarding the collaborative matter or when a collaborative attorney withdraws or is discharged. A party can terminate the process at any time, and for any reason or no reason. A distinctive aspect of collaborative process is that when the process fails or is terminated a lawyer or his law firm may not continue to represent a party before the court as to that matter. Advocates of collaborative law believe that this disqualification rule is fundamental to the success of the collaborative process. None of our attorneys are trained in collaborative law.
What is arbitration?
Arbitration is a binding process whereby parties submit their contested matter for resolution by a third-party arbitrator who is often a retired judge or an attorney with ample experience. Arbitration is become more common as it results in quicker resolution and avoids the court system, which can often be slow and inefficient.
Arbitration is essentially the equivalent of litigating in private with an arbitrator of the parties’ choosing. The parties must pay for the arbitrator’s services. The process is binding and can be as formal as a trial with the corresponding evidentiary standards or can be less formal as the parties may agree. The rights of appeal may be preserved or waived. The parties must agree to arbitrate and a court cannot order parties to arbitration. An arbitration judgment is ultimately approved by the probate and family court and operates as an enforceable judgment just as a post-trial judgment would. The process is private and more efficient than trying a case in court.