If a couple can remove all or most of the emotional animosity from their negotiations, they have an option of using alternative dispute resolution, also known as ADR, in place of litigation. Issues such as the division of marital property, child support, alimony, custody arrangements and other matters can be resolved without the high-strung drama of litigation or threats of a courtroom battle. Mediation is another means of divorcing minus litigation.
The Philly Voice’s recent article, “Why divorcing couples are choosing alternative dispute resolution over litigation” explains that these approaches are more flexible, faster and less expensive than litigation. Obviously, prior to any action, talk to an attorney.
Mediation lets the parties work through the issues in a more informal setting. However, this requires open communication, candor and a willingness to compromise. Arbitration is more formal and still allows the parties to streamline the decisionmaker’s role, allowing a faster resolution than a trial.
In mediation, the two parties to the divorce select a mediator who supervises direct negotiation. Parties may appear with or without a lawyer. The mediator guides the parties to reach a resolution. Mediation works best when the parties can talk openly or are willing to be conciliatory. It can even help to establish the basis of the post-dissolution relationship. When an agreement is reached, a written Memorandum of Understanding is prepared by the mediator. You can talk to you own attorney to assist in finalizing a formal written agreement.
Mediation allows for very customized solutions, since the negotiation isn’t bound by statute or case law, as it would be in litigation. Select a mediator who is professional, patient, a good communicator and experienced in these matters. The parties must develop trust with the mediator, so they can candidly talk about the needs and concerns in settling their divorce.
Arbitration lets divorcing spouses determine how formal or informal a process to use. It also has the advantage of confidentiality. However, unlike mediation, arbitration is more like litigation. The parties choose an arbitrator and work with their own counsel to prepare for a hearing. Just like a trial, each side presents documents, witnesses and makes arguments. The arbitrator then makes decisions concerning the divorce, applying the law to the specific facts. Note that an arbitrator’s decisions are final and typically not reviewable by a court.
Divorces can take several years to travel through the courts, and trials are public hearings. The parties also have no say regarding which judge is assigned to the case. The litigation process can drag on, and it can be stressful and expensive, and the results can be unfavorable or unexpected. Trials are also long and tedious.
For the wave of gray divorces that are becoming prevalent among seniors, a mediated or ADR divorce is a wise way to respectfully untangle a marriage of many years. In the process, speak with your estate planning attorney, as a number of issues addressed during the divorce process will undoubtedly impact the estate plan for both spouses.
Reference: Philly Voice (September 12, 2019) “Why divorcing couples are choosing alternative dispute resolution over litigation”