Alternate Dispute Resolution (Part Two)

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

In this two-part article, we are discussing various forms of Alternate Dispute Resolution (ADR).  We had discussed general principles and Mediation. (Link to Part One)

Arbitration

A.         What is Arbitration: Similar to mediation, in an arbitration proceeding, an impartial third party decides issues in a case. The parties select the arbitrator and agree on which issues the arbitrator will decide.

i.          Unlike mediation, however, the parties also agree in advance whether or not the arbitrator’s decisions will be binding on them; which means that an arbitrator’s decision would have the same effect as if a judge rendered the decision.

ii.         The parties also have the option of having the arbitrator’s decision treated merely as a recommendation.

iii.        While an arbitrator decides the issues within a divorce case, the judge

would still make the final determination as whether to grant the divorce.

B.         Who is the Arbitrator: Similar to Mediation, an arbitrator is a trained, experienced family law attorney or retired judge

C.         How Does Arbitration Work:  The arbitrator, after hearing testimony from the clients and after reviewing information provided to her by the clients to help make the decision, make the decision herself. Like mediation, arbitration takes place in a private environment.

D.        Why Arbitration: The arbitrators and attorneys can control the speed and the intensity of the arbitration process.  Shortcuts can be agreed to; less formal hearing process can be agreed to.  The arbitrator can focus on the litigants without being distracted by the burdensome tasks often assigned to many matrimonial judges.

E.         Why Not Arbitration: It can be very expensive, as the Arbitrator often carries an hourly rate that exceeds either attorney.  As the name suggests, the final decision may also be somewhat “arbitrary”.  If a party feels that the Arbitrator does not do her job properly, depending on the terms of arbitration, the appeal process may be non-existent or very expensive.

Collaborative Divorce

A.         What is Collaborative Divorce and how is it different than mediation: In mediation there is one neutral professional helping to resolve the issues between the parties. In a collaborative divorce, the parties, their attorneys, and other appropriate professionals function as a team.

B.         Who is Involved: Collaborative Team of attorneys, mental health professionals, financial consultants, and other specialists.

C.         How does Collaborative Divorce Work:

i.          The divorcing couples, with their collaborative law attorneys, meet to sign an Agreement. Spouses agree to communicate openly and honestly. They are advised in the use of experts and other consultants to present their individual viewpoints. They are instructed in the limitations and confidentiality of the process, their rights and obligations during the pending settlement, and the legal enforceability of the final settlement.

ii.         The parties and their collaborative attorneys meet. Information is gathered. One of the two attorneys will be appointed to contact the recommended team professionals on behalf of the client-couple. Subsequent meetings are held with the divorcing couple and their attorneys or other professionals, as necessary, until a satisfactory settlement is reached.

Finally, the divorce settlement agreement is drafted with the approval of both parties and signed by the parties. The Agreement is submitted to the Court at the time of the Divorce hearing to be incorporated into the Judgment of Divorce.

D.        Why Collaborative Divorce: The hoped for result of a collaborative law process is to secure an agreement without conflict.

E.         Why Not Collaborative Divorce: If the process fails, the attorneys and experts cannot be used in the forthcoming divorce litigation.  New Attorneys and experts must be retained.  Expenses must be recreated and the parties will often have very bitter feelings of a failed process, with blame assigned to the other spouse.  This may make an “amicable” settlement even more difficult.

Conclusion

Alternate Dispute Resolution, while it may not be for everyone, offers an option for parties to resolve their family law disputes outside of the court system. Using these alternative dispute resolution methods allows parties to participate in the decisions on the issues in their divorce and to help control the process itself.

 

 

 

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