There are several alternatives to resolving a divorce in court, which are known collectively as Alternative Dispute Resolution. Choosing an alternative to going to court will likely save you money, time, and allow you to create a solution that the court may not otherwise be able to award without an agreement. The three types of Alternative Dispute Resolution include mediation, arbitration and collaborative law.
Mediation is an Alternative Dispute Resolution process where the parties (with or without an attorney) seek the services of a neutral third party (generally a retired judge, an attorney, or a social worker) to try and help resolve any and all outstanding issues stemming from a separation or disagreements over custody and access schedules.
In family law cases involving minor children, if an action is filed with the Court, it is required to attend mediation. It is always worth the time and effort to attend mediation before filing because if you settle, you can save a lot of time and money.
At the end of the day it is not the attorneys or the mediators who settle the cases, but the parties. The attorneys and mediators are here to help navigate a possible settlement, but the parties are the captains of the ship who ultimate make the decision on how the case will progress.
Even resolving only a portion of your family law case is a success. Every issue that can be resolved through mediation is one less issue an attorney will need to prepare for trial and one less issue for a court to make the decision for you. Saving you time, money, and uncertainty.
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Unlike a mediator, an arbitrator can make decisions on your behalf (either binding or non-binding) instead of just making recommendations of how they believe that the matter should be resolved. Arbitration is a form of Alternative Dispute Resolution which is conducted like a merits hearing where the parties must present testimony and evidence to support why the arbitrator should decide in their favor. If arbitration is binding (or the non-binding decision is agreed upon by the parties), the parties then submit the decision to the court to have it incorporated into an Order. If the parties are eligible for an Absolute Divorce, the court will schedule an uncontested divorce testimony.
Parties who do not want to go through the court system for a contested matter may want to consider collaborative law. Collaborative law is where both parties and their respective attorneys agree that the attorneys’ are hired solely to have the parties’ issues resolved outside the court system through open dialogue. Both attorneys and both parties must enter into a Collaborative Law Participant Agreement pledging that the attorneys will not take the case to court, except for a non-contested divorce, and agree to honest and full disclosure of all relevant information. The parties, together with their collaborative professionals, meet face-to-face to discuss all issues needed to reach an agreement. Besides attorneys, the team of collaborative professionals may include mental health professionals, child specialist, and financial professionals. Both parties may abandon the collaborative law process if they feel so compelled to file an action with the court. However, they cannot use the lawyers involved in the collaborative process without the consent of the other party.