FREQUENTLY ASKED QUESTIONS: ALTERNATIVE DISPUTE RESOLUTION FOR DIVORCE
- What is Alternative Divorce Resolution?
- What is Arbitration?
- What is Mediation?
- What is Collaborative Divorce?
- What is the difference between Collaborative Divorce and Mediation?
- What is a Co-Mediation/Collaborative Team?
- What is the difference between Collaborative Divorce and a contested divorce?
- How do Mediation and Collaborative Divorce minimize the hostility of many divorces?
- How does Collaborative Divorce actually work, step by step?
- Is ADR a faster way to get a divorce?
- What if we already agree on everything?
- What if we don’t reach agreement?
- What are our chances for success?
- How do Mediation and Collaborative Divorce focus on the future?
- How much do these processes cost?
- Who pays for mediation or collaboration?
- What’s the next step?
What is Alternative Divorce Resolution?
Alternative Dispute Resolution, also known as “ADR”, and sometimes called “consensual divorce resolution”, takes various forms. It is any process that provides an alternative to a court battle for resolving a conflict. It includes arbitration, collaborative law, and mediation. The best alternative for you and your situation depends on several factors, including your goals, your readiness to resolve (emotionally), and the complexity of your situation (legal and financial), to name a few.
In Mediation and Collaborative Divorce, you and your spouse or partner agree to:
• Negotiate a mutually acceptable agreement, rather than having a court impose a final order on you.
• Maintain open communication and share information.
• Create shared solutions acknowledging the highest priorities of all invovled.
What is Arbitration?
In Arbitration, the participants agree to allow a neutral third person, or a panel of neutral parties, to hear their arguments and render a decision in their case, essentially acting as a judge. The participants can agree as to whether or not the arbitrator’s decision will be binding or non-binding and what evidence may be presented. Each participant may be represented during the process by his/her own lawyer or may represent themselves during arbitration.
What is Mediation?
Mediation is a voluntary process in which participants, with the assistance of a neutral family law attorney, or team of neutral professionals, work towards the co-creation of a mutually satisfying agreement. The mediator(s) facilitate a discussion that allows the participants to (1) focus on their goals, (2) address each concern, and (3) co-create agreements that satisfy both. The participants in mediation, not the mediator, make the final decisions that most affect their lives. When signed and filed with the court, all agreements are binding, as if the judge had issued the orders him/herself.
What is Collaborative Divorce?
Collaborative Divorce is a team approach to resolve all items in your divorce, respectfully – without going to court. Your Collaborative Lawyers offer you and your spouse or partner the support, protection, and guidance of independent counsel, with the commitment of NOT taking the case to court. You also get the benefit of child and financial specialists, divorce coaches, and other professionals, all dedicated to helping you reach your best possible agreement.
What is the difference between Collaborative Divorce and Mediation?
In mediation, a neutral third party (the mediator) assists in the negotiations of both spouses/partners to reach a complete resolution. The mediator, does not represent either party individually and, therefore, cannot give legal advice or be an advocate for either side. It is strongly recommended that you have individual counsel advising you during your mediation.
In Collaborative Divorce, each party has their own lawyer assisting them in co-creating well informed and complete agreements. The participants also work with Divorce Coaches (mental health professionals assisting with the management of emotions and providing tools for productive communication), a financial professional (neutral to both participants, educating them on the financial aspects of the divorce such as the identification of financial goals, budgeting, and tax implications of possible options for resolution), and a child specialist (who acts as the voice of the children, educating both parents on any signs of divorce stress and how to manage such stresses). When an agreement is reached, the lawyers prepare the judgment and file it with the court, again making it binding and fully enforceable, without the need of ever appearing in court.
Both Collaborative Divorce and Mediation rely on a voluntary, free exchange of information and a commitment to creating agreements addressing everyone’s shared goals and concerns. If mediation doesn’t result in a settlement, you may choose to use your counsel in litigation, if this is what you and your lawyer have agreed. In Collaborative Divorce, the lawyers and parties sign an agreement committing to resolving out of court. It specifically states that the Collaborative lawyers and other professional team members are disqualified from participating in litigation if the Collaborative process ends without reaching an agreement. This does not prevent you from litigating any unresolved issues, or your entire case. It only limits your collaborative professionals from representing you in the litigation process. Every divorce situation is different, just as every person is different. Your choice of mediation or collaboration should be made with professional advice.
What is a Co-Mediation/Collaborative Team?
A Co-Mediation/Collaborative team is the combination of professionals that you choose to work with to resolve your dispute. It can be your Collaborative Lawyers or attorney mediator, a neutral financial professional, a neutral or two individual therapists/divorce coaches, a neutral child specialist, or any other specialist you and your spouse believe would be helpful. Your team will guide and support you as problem-solvers, not as adversaries.
What is the difference between Collaborative Divorce and a contested divorce?
In a contested divorce, the parties rely upon the court system and judges to resolve their disputes. Unfortunately, in a contested divorce you often come to view each other as adversaries, and your divorce may be a battleground. The resulting conflicts take an immense toll on emotions – especially the children’s – and on finances. Collaborative Divorce is, by definition, a non-adversarial approach. Your lawyers pledge, in writing, not to go to court. They negotiate in good faith, and work together with you to reach a mutually satisfying agreement outside of the court system. Collaborative Divorce works through the emotional strains of a breakup, and protects the well-being of the children. It is, of course, not without conflict. But, because all components of the divorce (children, emotional, financial, and legal) are being addressed, managed, and resolved.
How do Mediation and Collaborative Divorce minimize the hostility of many divorces?
The guiding principle of Mediation and Collaborative Divorce is respect. This respectful tone encourages the participants to show compassion, understanding, and cooperation. Mediation and Collaborative professionals are trained in productive problem solving, without the blaming and shaming inherent in a contested divorce. The goal of these processes is to help divorcing couples build an agreement together, not to perpetuate disagreement.
How does Collaborative Divorce actually work, step by step?
When you decide on Collaborative Divorce, the first step is to hire a Collaborative Divorce team (lawyers, coaches, child specialist, and financial specialist). Once the team is hired, a formal document called a “Stipulation and Order to Proceed by Collaborative Law” is prepared, signed, and filed with the court. This officially starts your Collaborative process. Next, you meet privately and in group sessions with your professionals. All meetings are focused on an honest exchange of information and clear understanding about needs and expectations, especially concerning the well-being of the children. You will gather and exchange required and needed information in preparation for your final, full team session in which you will co-create all of your agreements. Mutual problem-solving by all participants leads to the final divorce agreement.
Is ADR a faster way to get a divorce?
Your situation determines how quickly your divorce process proceeds; In other words, your divorce, through Mediation or Collaborative Divorce, takes however long it takes for you and your spouse to agree. These processes are more direct and tend to be more efficient. By focusing on problem-solving, instead of blame and grievances, there is a greater likelihood of reaching an agreement more quickly. By dealing with the emotional and financial issues, as well as the legal issues, in a safe, open, respectful environment, you will be more satisfied and will reach resolution faster than battling every issue in court. The only issues that will be addressed in court are those that are legally relevant. Concerns such as “he’s never taken care of toddlers before, he wouldn’t know what to feed them” or “we can’t sell the house because we’re upside-down on it” are not the concerns of the court, and often result in multiple court hearings for restricted visitation or temporary control of property. All of this means more time, more money, and more stress. In Mediation and Collaborative Divorce, all of these issues are addressed. And since you reach agreement out of court, there’s no wait time for court dates.
However, as a rule of thumb, the higher the conflict, the higher the cost, and the longer it will take to resolve your matter. This is true regardless of the process (litigation, collaboration, or mediation). So it is important to understand and secure the professional assistance that will help reduce the conflict in your case.
What if we already agree on everything?
Congratulations! The first thing I want to do in mediation is identify what you already agree on. These points of agreement will act as the foundation of your overall agreement. Often, the concepts that make sense to you on certain easy issues can be applied to resolve other issues as well. Financial disclosures are still required by law, and are necessary to ensure that your judgment (the formal draft of your agreement) are enforceable and resistant to later attack should one of you change your mind about the agreements reached. But, generally speaking, those who agree on everything tend to spend less in money and time completing their divorce process.
What if we don’t reach agreement?
In the event no agreement is reached, you can discuss other settlement options. All mediation and collaborative discussions and materials, with very few exceptions, are confidential and are not be admissible in any later court or other adversarial proceeding. The purpose of such strict confidentiality is to promote open and honest discussions, without the fear that such communications will be used against either participant later on. Perhaps the greatest risk of an unsuccessful mediation or collaborative process is the financial cost of the unsuccessful effort. Recognizing this to be a valid concern, even unsuccessful ADR participants often get substantial benefit from having had the opportunity to fully communicate their concerns and interests. With few exceptions, such cases often resolve shortly after the ADR process has ended, in large part, because of the work done during the mediation or collaborative process. In some, rare, cases, as disturbing as this may sound, the participants are addicted to the conflict; it keeps them together. Those cases tend to be the small percentage that will have a judge impose orders in a trial, many years down the road.
What are our chances for success?
This really depends less on your professionals and more on you. If you are in an emotional state that prevents you from understanding legal and financial issues, or from even being in the same room with your partner/spouse, your chances for a successful resolution, without the help of a communication coach and/or skilled lawyer, may be very low. Think about the most difficult discussion you have had with your partner/spouse: maybe it was over finances, spousal support, or whether to put the kids in public or private school. When you enter a divorce, those discussions do NOT become suddenly easier. In fact, they are far more strained and positional.
Your chances for success depend on knowing yourself and your partner/spouse, and securing the right professional for your goals and situation. If you are so conflict-averse that you will way “yes” when you mean “no”, just to be done, a process like mediation may not be a good fit for you; you should have a lawyer guiding and assisting you in the negotiations. On the other hand, if you AND your partner/spouse have a balanced understanding of your finances and are both able to negotiate on your own behalf, mediation would probably be a good fit.
The reality is that 95% of all divorces settle without going to trial. The questions really is, at what point? After you have fought for 3 years and have nothing left to fight over? Or at the beginning, while there is some dignity and respect? Finding the right professional(s) for your situation will increase your chances of a successful resolution.
How do Mediation and Collaborative Divorce focus on the future?
We cannot undo the past. Unfortunately, in most contested divorces, if you read through the party’s declarations in support of their requested orders, the primary focus is past misdeeds and hurtful acts. This keeps the parties entrenched in the “rightness” and, as a result, in the fight without hope of an efficient resolution. After all, how can you get to your destination when you won’t take your eyes off the rear view mirror?
In Mediation and Collaboration, the primary focus isn’t where you were. The focus is on where you want to be. Information is gathered that is not only required by law, but also necessary so that you can make good decisions on how to get to where you want to be – agreements that set you on a path for success in your separate lives. As a common byproduct, during such processes, many participants learn skills and techniques to resolve future conflicts, not only with their former spouse/partner, but also with others in normal, daily life.
How much do these processes cost?
The cost of your mediated or collaborated divorce depends on how quickly you and your spouse or partner are able to come to agreement, the number and complexity of the issues, and the level of conflict. So the cost varies widely. Studies have shown that Collaborative Divorce typically ranges in cost from 1/3rd to 1/10th the cost of contested matters. Mediation is typically the least expensive of the attorney-assisted resolution processes. When comparing ADR costs to a contested divorce in court, remember to factor in not only the attorneys’ fees and court costs but, also, time lost from work to attend court hearings, child care costs for the time you spend in court, the embarrassment of having to ask family and/or friends to take time from their jobs and family to testify as witnesses, the stress and sleepless nights you, your children, and your family and friends will experience, and the fact that all documents filed, including those nasty declarations that make each side look as bad as possible, are public record for all to see: your friends, co-workers, family, employers, and your children. These “soft costs” are often far greater than any money that you actually spend on a contested divorce.
Who pays for mediation or collaboration?
Responsibility for the mediation or collaborative fees needs to be decided between the participants. My personal preference is that, to the extent it is possible, each party have some significant financial responsibility for the fees. I find this promotes a balanced commitment to steady progress. The key, however, is that the parties themselves agree upon the division of the fee in whatever way seems most balanced and appropriate.
What’s the next step?
If you have more questions or have decided that you are ready to explore one of these ADR options, schedule a free 1 hour orientation with a family law attorney mediator. Se habla Español. We can meet with you either individually or with your spouse. Our orientation typically lasts one hour, and we do not charge for this first hour. If you exceed this first hour, you will be charged our regular hourly rate, prorated to the tenth of an hour for the excess time.
Call (909) 548-2171 or submit the form below to REQUEST AN APPOINTMENT.