Is staying out of court the best way to proceed when facing the dissolution of your marriage?
Mediation, arbitration, and Collaborative Law all have similarities and differences
Many couples today are looking for ways to avoid costly litigation while maintaining control of their situation when going through a divorce. As such, out-of-court divorce options, such as mediation, arbitration, and Collaborative Law, offer alternatives that can protect families from both expensive legal battles and emotional trauma, according to CNBC. While these out-of-court options are becoming more popular, many people have trouble understanding the differences between each approach and deciding which one may work best for them.
Mediation, arbitration and Collaborative Law
The three main types of out-of-court divorce options are mediation, arbitration, and Collaborative Law. All three approaches fall into the category of Alternative Dispute Resolution. In mediation, a third party mediator, often a family law attorney, helps divorcing spouses decide issues related to divorce and parenting concerns. The final decision, however, is ultimately left to the spouses involved, who may or may not each have their own attorneys during the process. Arbitration is very similar to mediation, except the arbitrator, unlike the mediator, has the legal authority to make binding decisions on the outcome of the divorce. You and your spouse must elect arbitration as an alternative dispute resolution method.
Collaborative Law has a number of significant differences from mediation and arbitration. In Collaborative Law each spouse has their own divorce attorney, but both parties agree to keep the divorce from going to trial. In the Collaborative Law Process, both parties pledge to work together for the mutually best outcome for themselves and their children. If the parties are unable to reach a resolution, they may elect to appoint a collaboratively trained arbitrator to preserve the collaborative process and bring the case to a close. In all three out-of-court options, other outside experts, such as financial advisers and counselors, may be consulted to ensure spouses are able to work towards a fair divorce agreement. In each option, the parties retain control of the process with the guidance and support of attorneys and other professionals. These options are usually far less costly than a litigated outcome. Each of these approaches can work well for parties who are thoughtful problem solvers and who want to be fair with the other spouse while creating an environment for the future in which both parties can focus on meeting the children’s needs.
Pros and cons of out-of-court options
Most families who choose out-of-court options tend to want to avoid the costly legal battles they often witness their friends or families going through. Indeed, while it is difficult to get an average figure for the cost of divorce, the general consensus is that staying out of court can dramatically reduce costs. Out-of-court options are also popular with parents who want to make sure their children are not exposed to their parents fighting over issues like parenting time and property division. When parties control the outcome, they rarely need to return to court when circumstances change in the future as they have learned to work with one another to resolve issues. This contrasts with litigated outcomes in which parties often return to court multiple times when circumstances change.
Out-of-court options are not right for everybody, however. As U.S. News & World Report notes, in relationships where one spouse feels intimidated by the other spouse then collaboration or mediation are almost certainly bound to fail. Whenever any sort of power imbalance exists, whether it be financial or emotional, then consideration must be given to finding the best method to protect the weaker spouse while controlling the trauma to the entire family of a costly litigation process.
Family law concerns
While the above provides a brief overview of some of the various out-of-court divorce options, if couples want to learn more they should get in touch with a family law attorney. An experienced attorney will be able to advise divorcing couples about what options may be available and whether an out-of-court process may work best for their particular situations.