Divorce and Alternative Dispute Resolution

Divorce can be difficult and adversarial. Alternative dispute resolution is one possible way to have more control over this difficult time in your life.

Last updated on March 25th, 2019

While divorce is a legal process, it does not necessarily need to involve a courtroom and huge lawyer fees. Alternative dispute resolution is a great option for couples who wish to avoid the hassle of going before a judge.

Divorce and Alternative Dispute Resolution do not always go hand in hand. Alternative dispute resolution is also used in employment contracts to resolve workplace issues, and even consumer law contracts when defective products cause problems.

What is Alternative Dispute Resolution?

Alternative Dispute Resolution generally refers to any process that seeks resolution while avoiding traditional litigation. Common examples of alternative dispute resolution include counseling, mediation, and  arbitration.

The easiest way to understand the differences between alternative dispute resolution methods is by using an example. Let’s imagine Henry and Wendy are considering getting a divorce due to financial differences.

Counseling

Counseling is a popular form of alternative dispute resolution for divorces. Typically, couples will go through counseling sessions before deciding to divorce. A counselor will work with each spouse individually with a goal of helping them reach a solution on their own.

Example: Henry and Wendy make an appointment with Counselor Carrie to discuss their marital issues about finances. Counselor Carrie works with each spouse separately to understand their complaints and then facilitates a conversation between Henry and Wendy so they can come to an agreement together about finances.

If the couple is already set on getting a divorce, Counselor Carrie may facilitate a conversation between them about the division of their assets and property.

Mediation

Mediation involves a third-party (the mediator) who can talk to each spouse individually and issue a proposed solution. The mediator’s solution is not legally binding.

Example: Henry and Wendy see Mediator Mary to help them agree on a property distribution plan. After working with each of them, Mediator Mary proposes a property division agreement that she thinks will be fair to both parties. Henry and Wendy can accept the proposed plan or reject it.

Arbitration

Arbitration is more similar to court in that an individual or group of individuals (arbitrators) preside over the parties and give a legally binding decision. Unlike a judge, the parties can select their arbitrator. There are arbitration companies that specialize in divorce and family law matters.

Example: Henry and Wendy see Arbitrator Alex to formulate a property division plan. After working with both Wendy and Henry, Arbitrator Alex drafts a property division plan for the divorce. Arbitrator Alex’s plan is legally binding and can be enforced by a court.

Benefits of Alternative Dispute Resolution in Divorce

There are several reasons why spouses might choose alternative dispute resolution over the courtroom.

Cost

One of the main reasons couples choose alternative dispute resolution methods to settle their divorce instead of the judge is the significantly lower cost. There are no court fees associated with counseling or other methods.

While many parties still choose to be represented by an attorney during divorce negotiations, the cost is usually less than paying for an attorney to litigate your divorce before a judge.

An attorney representing parties going through mediation may advise their clients on their rights relative to the agreement and whether or not to sign a proposed agreement.

Time

Another perk of avoiding the court system is avoiding clogged dockets. With alternative dispute resolution, you may not need to wait the two or three months it takes to get a hearing before a judge.

Control

When a couple chooses counseling, mediation or arbitration they generally have much more control over the process. They are able to choose the counselor, mediator or arbitrator and can choose date and time of appointments, with some restrictions.

Atmosphere

The courtroom tends to foster an adversarial environment. Alternative dispute resolution does not aim to have winners and losers, but rather a solution that works for both parties.

Others are drawn to alternative dispute resolution methods because they are less formal than litigation. Participants do not need to wear fancy suits or prepare written statements for alternative dispute resolution processes.

Another potential perk of the informality of alternative dispute resolution is that the parties do not need to abide by federal or state laws of evidence or procedure.

This means important aspects of the divorce that otherwise would not reach the judge could reach the the third-party decision-maker in alternative dispute resolution.

Family Law Uses of Alternative Dispute Resolution

As referenced above, alternative dispute resolution methods can also be used for property distribution agreements and child support agreements.

Occasionally, the court system and alternative dispute resolution overlap. Family court judges sometimes order families to undergo some form of alternative dispute resolution. This is because judges can recognize that the courtroom is sometimes not the best place to settle sensitive family issues.

While Alternative Dispute Resolution is used in other fields, it is very popular in divorce and family law cases since these cases usually involved private details of personal lives.

Conclusion

If you are thinking about getting a divorce and alternative dispute resolution sounds like it might be a better fit than the more formal court process, consider speaking things over with a family lawyer today.

Need an attorney?

Our articles provide general information about all of our practice areas. If you're looking for legal counsel specific to your situation, you'll need to talk to a lawyer.

Share This