Decision Time: Should You Go To Court Or Try Alternative Dispute Resolution?
It is becoming more and more commonplace for people going through a divorce to seek another avenue to resolution other than traditional litigation. In order to avoid sometimes needlessly drawn out court battles, couples are looking to Alternative Dispute Resolution or ADR to get them to the end of their divorce proceedings more efficiently. Is ADR right for your divorce?
It is true that the great majority of divorces in New Jersey settle without going to trial. In fact, courts take many steps to ensure that parties are attempting to settle their dispute before the need for a trial arises. These steps include mandatory participation in the Early Settlement Panel program and obligatory economic mediation. Sometimes couples themselves seek to participate in types of ADR such as mediation or arbitration.
What is ADR? Two forms of ADR available to couples divorcing are mediation and arbitration. Breaking it down a bit further, arbitration can be binding or not binding. Both of these forms of ADR seek to assist the couple in resolving their differences without the need to appear before a judge in a trial who would decide the terms of their divorce.
Mediation is most beneficial to couples who are able to work together cooperatively to iron out the issues in their divorce. They select a mediator who sits with both parties and discusses with them the ways they can resolve their problems and how they can collaboratively come up with a settlement agreement that works for them both. The mediator’s role is mostly advisory and he or she does not represent either of the parties.
Arbitration is much more formal than mediation and it can be binding or not binding. Both parties must agree to arbitrate and they select two arbitrators who will hear both of their sides and then render a decision. While not as formal as a court, arbitration is much more structured than mediation and, if you agree to binding mediation, you must accept the decision of the panel. In non-binding arbitration, you do not have to accept the decision of the arbitrators, but you then must proceed to a divorce trial.
Risks of Alternate Dispute Resolution
How do you evaluate whether ADR is right for you? Consider these factors:
Cost is not always lower than a trial. Especially with arbitration, money can be quickly spent, especially for lengthy arbitrations. Most arbitrators are highly experienced attorneys or former judges who may require a very high hourly rate that the couple must pay. Note: Mediation tends to cost less than both litigated divorce AND arbitrated divorce.
You may go through the process of ADR, but not settle your issues. It is a possibility that you may go through the steps of mediation, arbitration or both, and still not reach a settlement with your spouse. This will lead you back to square one which is the need for a divorce trial, anyway.
Unbalanced communication in mediation. As stated earlier, mediation is an informal and collaborative process. But, if you have a much less strong personality than your spouse, you may feel that you are not being heard or you message is not being properly conveyed to the mediator, because your spouse is commandeering the conversation.
No real collaboration in arbitration. While arbitration is not a courtroom, it still results in a third party making decision for you and your spouse. It is always best to try and shape your own marital settlement to the best of your ability with your spouse. Remember, you are the ones who have to live with this agreement, now and into the future. It’s always best to try and dictate your own future as best you can.
One or both spouses may be unhappy after arbitration. Because couples are required to accept the decision of the panel in binding arbitration, you or both you and your spouse could end up with a decision that you can do very little to change. Unless there is evidence of “gross misconduct” by the arbitrators, successfully appealing their decision is nearly impossible.
If you and your spouse are divorcing and are considering Alternative Dispute Resolution as a way to settle your issues, it is very important to discuss these options with an experienced family law attorney who is very familiar with ADR and how ADR relates to your specific divorce. Please contact us today to set up your initial consultation with one of our attorneys who is skilled in Alternative Dispute Resolutions.