Divorce Law Monitor
Divorce Choose Your Own Adventure: Exploring Alternative Dispute Resolution Options
March 4, 2021
There are very few certainties in the divorce process. Even though you can draw generalizations from the law or experience, no two divorce matters will ever be exactly the same. For divorce practitioners, the variability from one case to the next is what makes matrimonial law a dynamic area of practice. One thing is for certain – eventually, the divorce process will end. It may not always be a happy ending, and there are numerous ways to arrive at the outcome. For example, the parties could reconcile and stay married, either side or both could die (it’s happened), the parties could go to trial or end up with a negotiated separation agreement. The vast majority of divorce matters – some estimate up to 95% of cases – end with the latter, though the journey to arrive at that final agreement can follow any number of paths with an incredible range in terms of time, money, and emotion expended along the way.
One approach to arriving at a negotiated separation agreement is through the parties’ participation in some form of alternative dispute resolution. Alternative dispute resolution (or “ADR”) is a broad term that encompasses options such as mediation, conciliation, and arbitration, which are alternatives to out-and-out litigation through the traditional court process. In recent years, the use of these ADR options – particularly mediation and conciliation – during the divorce process has increased, and understandably so. Litigating a divorce through the traditional court process can be costly and unpredictable. The courts are so backlogged that even the judges often strongly recommend that the parties engage in some alternative dispute resolution before the next hearing date or trial. So which ADR option might be right for you and your divorcing spouse?
Mediation: Mediation comes in many shapes and sizes. Most commonly, it occurs at the early stages of the divorce process, sometimes even before either side has filed for divorce. The divorcing spouses first agree to participate in mediation and then select a mediator, a trained neutral third-party ranging from a non-attorney to a retired judge, who can be free or fee-based. A skilled mediator will remain neutral but try and assist the parties in reaching an amicable resolution that works best in their respective situations. Negotiations during mediation are confidential and cannot be used if litigation follows. The process is non-binding, meaning that the parties are not obligated to reach a final agreement during the mediation process. Mediation is often a lower cost and quicker alternative to litigation, even though some mediations can last a few months.
Despite these virtues, mediation is certainly not for everyone. Before considering this option, it is important to reflect on the dynamics between you and your partner during the marriage. How did they treat you regarding the issues at stake in the mediation, such as finances and parenting? Emotional and power dynamics between the parties also play an important role in deciding whether mediation is appropriate. If your spouse was controlling, manipulative, or even abusive, mediation is unlikely to be successful.
Conciliation: Over the years, I have found conciliation to be a useful option in helping parties reach a resolution. Conciliation shares a lot of similar features with mediation – you select a trained conciliator, negotiations are confidential, the process is non-binding, and it can be a quicker and lower cost alternative to ongoing litigation. The primary distinctions between mediation and conciliation are when and how each happens. Conciliation typically occurs after some period of litigation, occasionally up to the eve of trial. When providing feedback to the parties and attorneys, the conciliator is far more direct than a mediator and will weigh in on the contested issues to make the parties understand their respective positions’ strengths and weaknesses. Because of the conciliator’s more direct approach, it can be beneficial to have a retired judge or established attorney with some level of gravitas in the role for the conciliation to be most effective.
The success of a conciliation often depends on the timing and the other considerations mentioned above in determining whether mediation is appropriate. As conciliation often occurs after some period of the litigation process, it can benefit parties who become disenchanted with the long delays between hearings or awaiting a trial and ready to reach a resolution. Sometimes it may seem to one or more of the parties or attorneys that the assigned trial judge does not appreciate the importance of certain contested issues and would therefore prefer to get, in essence, a “second opinion” from the conciliator during the conciliation process.
The divorce process is a significant financial transaction, and – just like with any other such transaction – you should be aware of the various options available to reach the inevitable conclusion. Similarly, it is important to have the advice and advocacy of a family law attorney to help you navigate the divorce process even when utilizing the ADR options discussed above. In other words, choose your adventure wisely!
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