Not all divorces need to be contested and decided by a judge in a courtroom. Spouses that are more amicable may be able to come to an agreement about their respective rights and obligations after the divorce and enter into a separation agreement rather than having a judge decide these issues. Even if the spouses aren’t able to completely agree on their own, they can seek alternative dispute resolution rather than a court hearing. Instead of a court hearing in front of a judge, spouses can proceed with a mediated divorce. Some courts will even require mediation before proceeding directly with litigation.
Litigation is a legal proceeding in court. Litigated divorces require the filing of documents, formal discovery, and the presentation of witness testimony and other evidence. These procedures, particularly discovery, can be costly and time consuming. Mediation is a process involving spouses attempting to resolve their dispute with the help of a third party, known as a mediator.
Divorce mediation is more cost effective than divorce litigation in a courtroom, as well as usually speedier. Litigated divorces take months, or even years if greatly contested. This extra time also usually results in greater expense. Instead, a mediated divorce typically helps expedite the process. Additionally, while the court process is adversarial, mediation typically helps spouses compromise, which helps speed up the process. There is also the added benefit that because mediation is less adversarial and involves less confrontation, spouses that choose mediation may leave the divorce more amicable, which is especially important if children are involved. Another benefit of mediation is privacy. Court proceedings from litigated divorces are public record. Alternatively, the mediation process is not part of the public record and can be kept confidential, provided both spouses keep the proceedings private.
Mediated divorces also allow the spouses to retain more control over their divorce and resulting rights and obligations after the divorce. If a divorce is litigated before a judge, the judge has final say on divorce matters, including property division and spousal support. With mediation, the mediator is a facilitator, not a judge. While the mediator will help the parties find common ground and come to a decision together, the parties have the ultimate say in what is decided.
While mediation itself isn’t legally binding, any resulting agreement between the parties is an enforceable contract, if signed and executed properly. However, any agreement that address child support or child custody and visitation must be approved by a judge to ensure the agreement is in the best interests of the child.
However, mediation is not for every couple. Some couples simply may not be able to come to an agreement, even with the help of a mediator. In these instances, the parties would need to go to court and have a judge make the necessary determinations. Additionally, if the parties are not able to be amicable or speak to each other productively, mediation is unlikely to be successful since it requires the parties to work together to come to a solution. Mediation also may not be a suitable choice if the relationship has a history of domestic abuse, manipulation, a significant imbalance of power, such as financial dependency, or where one or both spouses have mental health issues. While mediation does offer many couples advantages over a litigated divorce, each spouse and couple needs to evaluate their individual situation and determine which method is best for them.
While mediation is the most common form of alternative dispute resolution in divorce matters, divorce arbitration is also available. Arbitration also involves a neutral third party outside of a courtroom, but is more similar to the traditional adversarial nature present in a courtroom. Similar to a litigated divorce where the judge makes a final determination, in divorce arbitration, the arbitrator will make the final decision, which is usually legally binding. Arbitration is common in instances when the couple entered into a marital agreement that stipulated the parties would utilize arbitration in the event of divorce.
Another method of divorce alternative dispute resolution is collaborative divorce. Collaborative divorce involves out of court sessions where spouses receive legal advice from attorneys trained in the collaborative process with the goal of an amicable and fair resolution for both parties. While it shares similarities with mediation in that it is often cheaper and faster than litigated divorce, collaborative divorce includes guidance from trained divorce lawyers. Collaborative divorce often includes a team of professionals, in addition to divorce attorneys.
For example, collaborative divorce often includes a mental health professional to assist with communication and child-related issues, as well as a financial professional to assist with collecting necessary financial information regarding assets and debts of the parties. This collaborative team works together with the spouses to work through emotional, financial, and legal issues to come to a mutual agreement of the parties’ rights and obligations after divorce.
In collaborative divorce there is a key theory of mutual respect and cooperation between spouses to help meet the needs of both parties. At the end of the process, the attorneys would create a separation agreement agreed to by both parties which would be incorporated into the court’s divorce order.
While alternative dispute resolution may not work for all couples, it offers many advantages for couples that choose these methods. If you’re considering utilizing one of these methods in your divorce, our attorneys can talk you through the options and help determine which process is best for you.