5 Types of Alternative Dispute Resolution in a Divorce
As with all lawsuits, divorce cases have the potential to go to trial. When a case goes to trial, it means that the parties could not resolve their issues between themselves and are instead asking a judge to make the final decision.
While trial (also known as adjudication) is sometimes necessary to resolve conflict, it is the most time-consuming and expensive method of resolving conflict between parties. Fortunately, somewhere between 90-95% of cases do not go to trial, as there are several types of alternative dispute resolution that parties use to resolve their issues outside of court.
Below are the 5 most common alternatives to trial in divorce, listed in the order of how they typically occur during a divorce case.
Negotiation between counsel is often the first step in attempting to resolve the issues of a divorce case. At this stage, the divorcing parties’ counsel will communicate their positions via oral or written communication in an attempt to resolve an issue.
In some cases, the parties and their counsel will meet up to engage in a settlement conference. Direct negotiation allows the parties a high level of autonomy in deciding how their matter will be resolved and an active role in making key decisions (rather than having a third party make the decisions). If a resolution is possible via direct negotiation between parties and their counsel, the case won’t get dragged and legal fees will remain relatively low. This is highly desirable.
If direct negotiation doesn’t help the parties reach a resolution, the next step is often to attend mediation. Mediation is a form of settlement conference coordinated by a third party called a “mediator,” whose job is to help facilitate the settlement discussion.
At this stage, parties maintain a high level of control over the proceeding and outcome, as the mediator will not make decisions for the parties. Instead, the mediator facilitates a discussion to help the parties guide themselves to a resolution. During mediation, parties often remain in separate rooms so they can speak privately with their attorney and mediator. The mediator travels between the rooms to discusses settlement proposals with each side.
Why is this form of alternative dispute resolution so popular? For starters, most cases are settled during mediation. Mediation has other advantages, including:
- Affordable: It is cheaper than a court proceeding because mediation requires a fraction of the time and preparation that is needed to attend court.
- Private: Mediation is more private than a court proceeding, as all records and conversations can remain confidential.
- Comfortable: Mediation is more comfortable than court because parties can freely consult with their lawyers and experts at any time, take breaks as needed, and eat snacks/meals while negotiating.
Late Case Evaluation
Parties may attend a late case evaluation if their case does not settle at mediation. In a late case evaluation, parties present their positions and proposed settlement terms to a third-party neutral who is often an experienced family lawyer or a retired judge.
The evaluator leverages their experience to make a non-binding recommendation to the parties on how they should resolve the matter. As part of this process, the evaluator considers the strengths and weaknesses of each parties’ position and informs both sides on what could occur should the case go to trial.
A late case evaluation can be useful in resolving a case because it gives the parties’ a “sneak preview” of how a judge might rule if the parties go to trial.
If divorcing spouses are unable to resolve their issues through negotiation/mediation, they can attend arbitration as an alternative to trial. Arbitration cuts down on the time, stress, and expense that is normally required by a traditional trial. This type of alternative dispute resolution yields the same outcome as a divorce trial, but arbitration proceedings occur privately before an arbitrator rather than in a public court with a judge.
The parties first select the arbitrator as well as the time, date, and location of the arbitration session.
Spouses then identify the issues that the arbitrator can decide on and may define how certain evidence should be presented, giving spouses the option to introduce evidence less formally than traditional court.
If the parties choose binding arbitration (which most do), the arbitrator’s decision is final, and the parties must follow it.
Should all other avenues of alternative dispute resolution fail, divorcing spouses may attend trial in front of a judge. While trial, or adjudication, is generally the most time-consuming, expensive, and stressful form of dispute resolution for parties, it is sometimes the only way forward.
At trial, your evidence will be presented to the judge through testimony and exhibits. Your attorney will make arguments based on the evidence presented and the judge will make a final, binding decision. Trials offer parties the least control over the outcome of their case as they are asking the judge to make the final, binding decision.
Regardless of how your case moves forward, choose a well-equipped attorney to prepare and present your case during both settlement negotiation and trial. The key to succeeding in both arenas is preparation and a thorough understanding of the law. Warner Bates offers these feats and more.
To learn how we can help resolve your divorce matter, schedule your consultation online or at (770) 766-8148!