Alternative Dispute Resolution: Mediation & Collaborative Law

Many family law clients believe that the only way that their matter can be properly and legally concluded is by going to court and appearing in front of a judge. That is simply not the case. In fact, provided both parties can agree to the terms of a settlement, neither party ever need appear in court to finalize their matter. Alternative Dispute Resolution (ADR) provides parties “alternative” ways to resolve their dispute without resorting to costly and often protracted litigation.

Litigation of family law matters, including divorce, can be expensive and can take months or even years to conclude, given the recent state budget cuts and the insufficient number of judges who are tasked with presiding over these family law matters. Litigation is often the option of last resort when the parties are unable to resolve their matter through a negotiated settlement. Litigation can cost thousands or even several hundreds of thousands of dollars depending on the complexity of the issues involved and the level of contentiousness between the parties and their attorneys. Litigation is also the option that affords the parties the least amount of input and control over the eventual outcome. Litigation in family court is often accompanied by repeated delays and mounting costs attendant with those delays. In a small minority of cases, litigation is necessary to adequately protect the interests of the parties. However, in the vast majority of family law disputes, the issues are capable of faster and more satisfying results through alternatives to litigation.

The most commonly utilized forms of Alternative Dispute Resolution in the context of a family law dispute are: Mediation, Collaborative Law and Cooperative Divorce.

  1. Mediation. Mediation is a form of dispute resolution whereby a neutral third party, “mediator” assists the parties in resolving some or all of the issues in their dispute. In the case of a divorce, or other family law matter, this process may include resolving issues of child custody, child/spousal support, prenuptial/marital agreements, property division, and any other issues that may arise in connection with a divorce or other family law proceeding. The mediator does not tell the parties what to do, but rather assists the parties in fashioning a resolution that is satisfactory to both of them. The parties in mediation may or may not be represented by counsel. The benefits of mediation are: 1) it is less expensive than litigation; 2) it takes much less time to conclude the matter; 3) the parties have maximum input and control over the outcome; 4) implementation of the agreement is usually smoother and less prone to failure than if an order had been imposed by a court; and 5) the issues can be discussed in a confidential setting rather than in open court.

Family law mediation is often a faster, less costly, and more satisfying alternative to litigation. In selecting a mediator, it is wise to choose a mediator who is also a Certified Family Law Specialist to ensure that all of the required documents are prepared timely, correctly, and completely.

  1. Collaborative Law. Collaborative law or collaborative divorce refers to a process to resolve family law conflicts in a respectful, non-adversarial, and mutually-beneficial manner. This collaborative approach has been successfully utilized in many other areas of the law, such as business, probate, and other civil proceedings.

The parties in a collaborative divorce agree to work cooperatively to resolve their issues. They sign an agreement that they will not litigate the matter. In the event that a party later chooses to litigate, that party must hire a new attorney and cannot continue to use the collaborative specialist.

Collaborative attorneys are specialists in settling disputes. They must undergo specific training in order to properly assist parties with a collaborative approach. Often, in the context of a collaborative divorce, the parties will employ a “team” of experts that may be needed to help resolve issues relating to finances and to the children, or to other issues pertaining to that family.

As with mediation, the benefits to the parties are many. They retain maximum control over the outcome of their case, as opposed to turning over the decision-making to a judge who does not have intimate knowledge of that particular family.

The parties, through their collaborative attorneys, agree to voluntarily provide necessary documents and information early in the process, which serves to drastically reduce the cost of the formal discovery that is often a hallmark of litigated divorces.

The collaborative approach to a divorce or other family law proceeding minimizes the hostility and the emotional toll that is often inflicted on the participants in a litigated dispute.

The collaborative divorce process is a respectful, peaceful, and dignified process that is designed to ensure that the participants and their children successfully transition to the next chapter of their lives.

  1. Cooperative Divorce. This non-adversarial option shares qualities with both mediation and collaborative divorce. The parties each have a lawyer and engage in settlement negotiations cooperatively, rather than combatively, in order to reach a mutually-satisfying resolution of the divorce or other family law issue.

Cooperative divorce relies on the participation of the parties and their lawyers and often jointly-retained experts, as necessary, rather than each party retaining his or her individual expert.

The parties in a cooperative divorce agree to treat each other with respect and in a civil and professional manner. Both parties commit to voluntary, full disclosure of pertinent financial information to eliminate the need for depositions, subpoenas and more formal (and expensive) methods of discovery. As in collaborative divorce, the parties agree not to litigate, but unlike in collaborative divorce, there is no requirement for a written stipulation to that effect.

As with mediation, cooperative divorce is a faster process than litigation and it also affords the parties an optimum level of input and control over the outcome. While experts may be involved and are typically jointly retained, the “teams” of experts that are often utilized in a collaborative divorce may not be needed. Thus, cooperative divorce can be a bit more cost effective than the collaborative approach, depending upon the issues involved.

It is wise to seek out a Certified Family Law Specialist who also practices in areas of dispute resolution, such as mediation and collaborative law. While an attorney may not have taken the specialized training as a collaborative practitioner, that attorney could be well-suited to assist parties with cooperative divorce which does not require the specialized training that is required of a collaborative attorney.

Contact our office today to find out more about alternative dispute resolution. Speak to divorce lawyer to determine whether mediation, collaborative law, or collaborative divorce is an appropriate option for your family law situation.

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