One of the most common divorce misconceptions is that once the divorce process starts it will not be resolved until all of the issues are decided by a court. Fortunately this is not true.  There are a number of options to be considered for resolving a divorce that do not involve a trial and can be considered at any point in the divorce process.  These options are known as alternative dispute resolution or ADR.

Given that the more sustained disagreement in a divorce generally equates to additional time and money, ADR becomes a very attractive option.  The more you and your spouse can agree upon the quicker you will be able to bring conclusion to your divorce and the more you can save in fees and costs.

Many times people feel that the situation with their spouse is so volatile that anything outside of a trial would hold no possibility for success.  This is an attitude that can potentially be very costly.  While sometimes trials cannot be avoided, keep in mind that if a case goes to trial you have effectively missed a number of opportunities for settlement.

It is also important to remember that more and more judges or other hearing officers in the family courts around the country are requiring some form of ADR prior to scheduling a final hearing in a contested case.  This means that parties going through a divorce and headed to court will, prior to a final hearing date being set, be required to make good faith efforts to resolve their case before they can have a trial through some form of ADR.

There are three main forms of ADR outside of direct negotiations between the parties and/or their attorneys.  Below is an overview of each that addresses some of the differences between the forms.  Depending on the status of your case, you will want to familiarize yourself with these forms and ask your attorney about the possibility of using one of these alternatives in an effort to resolve your case.

Mediation

Mediation is a form of ADR where the parties, with or without their attorneys, meet with an individual who is trained in facilitating settlement efforts between the parties.  The mediator will meet with the parties and help them work towards a settlement.  The mediator cannot force or compel the parties to undertake any course of action; however, the mediator can help identify settlement strategies and possible resolutions.  Following a successful mediation, the parties’ agreement will be reduced to writing for presentation to the family court.

Arbitration

Arbitration is quite similar to a trial; however, instead of a judge, the parties will select a trained arbitrator who is generally a family court lawyer.  This attorney/arbitrator will act as a “private judge.”  This attorney will hear the evidence in a more relaxed setting and following the arbitration will issue a decision.  Generally by agreement the arbitrator’s decision is final; however, the parties have more control over the final decision than they usually would before judge. 

Collaborative Law

Collaborative Law is a form of ADR where the parties sign a written agreement where by they agree to forgo litigation in lieu of settlement.  The parties and their attorneys have joint meetings where they tackle issues and work towards settlement.  The parties are involved in the process and help to facilitate the process.  If stumbling points are encountered, the parties have the option of using mediation or even arbitration on points that may be causing problems.  In the unlikely event that collaborative law does not work, the parties can engage in litigation; however, their collaborative counsel will have to leave the case and their must retain new counsel.

It is important to realize that while these are options the all tools that are designed and exist to give those going through a divorce additional tools they can use to resolve the issues they are facing.  With proper preparation and the appropriate effort there is no reason to believe these tools cannot work to help you resolve you case.

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