There’s a trend now with divorcing couples seeking forms of Alternative Dispute Resolution (“ADR”). As an attorney and mediator, I always discuss all options with potential clients during the consultation. Here’s an overview:
Mediation can take place at any stage during a divorce and is highly encouraged by the court. The goal of a mediator is to facilitate a conversation between the parties so they may make their own decision. Many courts in New York offer one free mediation session. The parties may also choose a private divorce mediator who will serve as a neutral third party to help reach a settlement. Depending on the complexity of issues, several mediation sessions may be required. Mediation can take place with or without attorneys. Typically, the parties split the cost of mediation (usually 50/50). If the mediator is an attorney, he/she can also draft the final settlement agreement. Both parties will be encouraged to have their own lawyer review the final settlement agreement.
Collaborative law another form of ADR for divorcing parties. Couples, with the assistance of their attorneys (and sometimes other professionals), make joint decisions regarding the dissolution of their marriage. The “team” of professionals who assist with the divorce can include, in addition to the attorneys, financial professionals, mental health professionals, and child specialists. Once all of the issues are decided and both parties are satisfied, the attorneys draft all necessary documents to finalize the divorce and make sure that all transfers of property, distributions of assets, and meetings with the parties’ children and/or the child specialist have taken place.
Arbitration is oftentimes confused with mediation. The arbitrator is like a judge – listening to testimony, reviewing evidence, and making a decision. In the divorce context, the parties should choose an arbitrator experienced with matrimonial law (at least 15 years of experience is recommended). Before the arbitration commences, the parties may decide whether the decision is binding or non-binding. If the arbitration is binding then the parties may go to court afterwards and seek a court order on its terms (e.g., spousal maintenance, child support, equitable distribution). At that point, it would be similar to a judge issuing that decision at trial. The only difference is that an arbitration decision cannot be appealed.
Many prenuptial agreements that I draft now include an ADR clause stating that if the couple gets divorced they will attempt to use one or more ADR methods. ADR is a nice way to reach an agreement in a divorce context so the parties do not ensue expensive litigation costs.