Alternate Dispute Resolution (Part One)

Authors: Robert B. Kornitzer, Esq. and Kristi Terranova, Esq.

Going through a divorce is often an emotionally, mentally, physically and financially challenging process. But clinging to an old idea on how to unravel your relationship with your spouse can make it even worse. It conjures up images of married couples fighting until the bitter end.  In some instances going through the court system is advisable. However, for those who do not need or want to bypass court, alternate dispute resolution (ADR) must be considered.  This article is the first of two on different types of ADR available to litigants.  Each has their plusses and minuses.

Alternate Dispute Resolution (ADR)

While only a judge can actually grant a divorce, division of your property/debts, alimony, child support, custody and parenting time are all issues that may need to be resolved prior to your divorce. A judge can always decide these issues after a trial, which based upon the judges’ current caseloads in some counties, can take anywhere from one to several years. However, ADR allows you to take the bull by the horns, so to speak, and create your own timeline for resolving issues relating to your divorce.

In light of the recent trends of couples wanting to get divorce in a more financially efficient and less psychologically damaging manner, couples have the option of participating in various forms of ADR, which includes mediation, arbitration and collaborative divorce.  These forms of ADR, are generally held at an attorney’s office, and the overall atmosphere is more informal and designed to reduce the level of conflict between you and your spouse.

Mediation

A.         What is Mediation: Mediation is one way of resolving the issues in your case with the assistance of a trained, impartial third party. The parties are brought together, with or without lawyers, by the mediator in a neutral setting.

B.         Who is the Mediator:   Optimally, an experienced family law attorney or retired judge with experience in family law. It is important to note that while the mediator is well-versed in the law, he or she does not and cannot represent either you or your spouse. As such, the mediator cannot offer you legal advice; he or she can simply tell you what the law is on the particular issue. Thus, it is a good idea that even when you and your spouse participate in alternate dispute resolution, such as mediation, you retain an attorney to advise you of your legal rights during the mediation process.

C.         How is Mediation done:

i.          The parties will likely enter into an agreement for the mediation process. This agreement can be as simple and direct as agreeing to mediate limited issues, designator the mediator, and allocating the cost of mediation.

ii.         The mediator will help the parties identify the issues and gather the information they need to make informed decision and communicate so they can find a solution agreeable to both.

iii.        Generally, anything discussed in mediation is confidential meaning if either you or your spouse decide to go through the court system, neither one of you can state what was or was not discussed in mediation. This enables the parties to be candid and not engage in posturing for fear that whatever they say can be used against them later on in court.

D.        Why Mediation:  Designed to facilitate settlements in an informal, non-adversarial manner.

E.         Why Not Mediation: It takes two to tango.  Frequently, one or both of the parties is not truly interested in a mutually reasonable settlement; they simply believe that their point of view will be pushed onto the other party by the mediator.  Parties often believe that they can sway the mediator to their side, and the final settlement will reflect that particular party’s positions.  In that event, mediation has not only wasted time and money, but perhaps left a bitter taste in both litigants’ mouths.

Click for Part Two

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