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Divorce Cases - Alternate Dispute Resolution In Divorce

Most counties in the metropolitan Atlanta area have some sort of mandated alternate dispute resolution-usually mediation, especially where custody is an issue. Even where not mandated, the parties may agree to alternate dispute resolution (ADR). There are several types of alternate dispute resolution including mediation, arbitration, early or late case evaluation and collaborative divorce.

Mediation is a process in which a trained and skilled mediator is a neutral. He or she acts as a facilitator to help the parties get an agreement on some or all of the issues in the divorce. You are not required to settle the case in mediation however you must make a good faith effort to resolve the issues. Some people want or need their lawyer to be present in the mediation. Others are capable of going to mediation alone. Any agreement is immediately binding when the parties have their lawyers attending the mediation. If a party does not have a lawyer, he or she has five (5) days to see a lawyer before the agreement becomes final. In some cases, you and your spouse will have to pay for the mediation. There are pros and cons to mediation as well as particular strategies to use in a mediation which you should discuss with your lawyer.

Other forms of alternate dispute resolution such as "early neutral evaluation" or "late case evaluation" may be employed as "a reality check " for parties and/or their lawyers. In these evaluations, an experienced lawyer of former judge will listen to a summary of the evidence and give his/her opinion as to what they think a judge or jury will do. That can facilitate obtaining an agreement. Courts have been known to assess attorneys fees against a party if they go to trial and don’t do substantially better than what the late case evaluator said would probably be the decision.

Some people may also choose to arbitrate their property settlement and have the arbitrator’s decision incorporated into the Final Order and Decree. Custody is not subject to binding arbitration. However, parenting plans are arbitral. The benefits of an arbitrator deciding how the assets and liabilities are divided instead of a judge are several. There is greater privacy in arbitration which is generally not open to the public. In arbitration only the arbitrator’s decision is public record. If the parties agree, they may put in an agreement a statement that the real and personal property, other assets and liabilities are divided between the parties and each party is satisfied with the division rather than the typical agreements which specify who gets what and is filed with the public court files. Arbitration may also be quicker and less expensive because there are generally fewer times the parties and their lawyers must appear before the arbitrator than when the parties have a judge making all the decisions. The parties may decide how to split the arbitrator’s fees or leave that decision up to the arbitrator. If the assets or liabilities are complex, for example there are partnerships or business relationships which require dividing, you can select and arbitrator with some special expertise in the field. Finally there are very limited grounds for appeal of the arbitrator’s decision.

One of the newest and "civil" ways to go through the divorce process is through "Collaborative Law." In a Collaborative divorce the parties are not adversarial and work with advisors and their attorneys to craft a workable solution for themselves. The professional’s involved make up a team. Those who practice true Collaborative Law have been trained, are certified and can make a large paradigm shift from the typical confrontational divorce practice. This does not mean that the parties agree on all issues. At the beginning of a case, the lawyers and clients sign an agreement committing them to the collaborative process. The lawyers agree, that if a settlement is not reached, they will step aside and will not represent either party in the divorce. The typical collaborative law case is a team approach. Each party has a lawyer and a divorce coach The divorce coach, usually a mental health professional, does not provide therapy but does help the parties through some of the emotional and communications issues that exist in any divorce whether or not the divorcing couple or one of them believe these issues exist. It is far less expensive to talk with a divorce coach about feelings than have your lawyer, who is not trained in the discipline, act as a psychologist. Depending upon the case, there will be a financial neutral who can look at all sides of the financial picture and come up with solutions that benefit both parties. If there are children, there is usually a child specialist as well. The child specialist is even available to children over the age of eighteen who may have issues with their parents divorcing. Through a series of meetings with the team or parts of the team the parties work towards an agreement. These "experts" offer ideas and help the parties craft their own agreement that both can live with.

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This article is not intended to be taken as legal advice specific to your case. It is general information only. You should consult an attorney before or shortly after a divorce is filed