I’m Getting a A Divorce: Do I Have to Go to Court?

While people commonly believe that all disputed divorce proceedings end up in court, there are now actually a number of different alternative dispute resolution (ADR) methods available. These methods allow couples going through a divorce or separation to resolve disputes regarding the division of their assets, support and/or child custody, without litigating in court. For any of these methods to be utilized effectively, both parties must be willing to actively engage in the process with a view to resolving their differences. There are currently three separate ADR or non-litigation methods available, each with their own distinct procedures as follows:

Mediation
Collaborative Law
Arbitration

Mediation

Mediation is the most traditional non-litigation method used to negotiate a settlement. If both parties agree, they will jointly engage an experienced family law mediator, who would be a neutral third party in their matter. The mediator’s role is to facilitate a productive dialogue between the parties, help generate possible solutions, and provide guidance in order to find a middle ground on which to compromise. The mediator is not able to provide legal advice or make decisions on their behalf; it is, therefore, important for the parties to obtain the advice of their legal representatives before finalizing any agreement. It will often take several mediation sessions to reach an agreement. If either party is entrenched in his or her views, and mediation appears to be ineffective, each party—or indeed the mediator—can terminate the process at any time. In the case of termination, the parties will need to contact their respective attorneys to peruse other options for resolving the case. In general, parties who are committed to the mediation process and wish to avoid costly litigation in court, do often reach a settlement through mediation. Once an agreement is reached, the parties should contact their respective family law attorneys so that their agreement can be drafted into a legally binding document. This will ensure legal protection for the parties and enable each to seek enforcement if the other party breaches any terms of the agreement.

Collaborative Law

Collaborative law, or collaborative divorce, is an alternative method to mediation for the purposes of negotiating a settlement. The procedure, however, is quite different from the traditional mediation method. Collaborative law is a relatively new process, but one which has worked well for many parties going through a divorce or separation. In this method, each party engages his or her own family law attorney who is specifically trained and qualified in collaborative law. The role of the attorneys in this method is to advise their respective clients of the law which applies to their circumstances, identify the issues and concerns of all parties and find effective ways to assist the parties in reaching a settlement. The collaborative law procedure involves a series of joint meetings with the parties and their respective collaborative attorneys. The process can also involve other professionals such as accountants or child experts if there are custody issues. Such experts, if required, will be independent and often jointly instructed by the parties. The attorneys will determine at the outset if any such experts are required depending on the circumstances of the individual case. An important factor to note with the collaborative law method is that the parties and their respective attorneys will usually enter into an agreement at the outset. This agreement would state that, if the parties fail to reach a settlement and the matter has to proceed by way of litigation in court, then both attorneys will withdraw from their case and cannot represent the parties in the court proceedings. The parties would then need to engage new attorneys to proceed with their matter in court. Because collaborative divorce is a unique process it is important to have an initial evaluation with a collaboratively trained attorney to determine if it is right for your case.

Arbitration

Arbitration is less frequently used in family law cases, but it can still be very effective. Arbitration is the only ADR method that involves a third-party decision-maker. In arbitration, the parties elect a certain individual such as a retired judge or an experienced family law attorney, to make a final decision in their matter. If parties agree, the arbitrator may engage in the settlement negotiations in a manner akin to mediation; otherwise the case is presented to the arbitrator by the parties’ attorneys in a manner and format similar to a court trial. If a trial is held, the arbitrator hears evidence from both parties, along with legal arguments from their attorneys. This usually takes place in private offices as opposed to a courtroom, such as in the offices of one of the attorneys. The arbitrator can request expert evidence to be produced such as evidence from an accountant, or a child expert depending on the issues in the case. The arbitration procedure is often a lot quicker than traditional litigation in court, saving time and costs for the parties, and can be a lot less stressful for the parties than having to attend a traditional court hearing to give evidence. The parties, in deciding to engage in arbitration, will usually sign a contract agreeing to be bound by the final decision made, which can then be enforced by the court. The advantage of this is that the parties know they are not wasting time and costs in futile negotiations and that a decision will be made one way or another at the end of their arbitration. The downside is that the decision of the arbitrator is final and binding, and if a party does not like the decision there are very limited grounds of appeal.

The attorneys at MDMB have extensive experience in these forms of alternative dispute resolution and can provide guidance as to the suitability of these options in each particular case. Our attorneys are members of many local groups supporting different alternative dispute resolution (ADR) methods available such as Virginia Collaborative Professionals and Collaborative Professionals of Northern Virginia.