Alternative Dispute Resolutions To Untie The Knot
Divorce or legal separation doesn’t always need a court hearing to decide how to divide property, who gets custody of children, and how often visitation can happen. Litigating in court is the last resort and the least common way to resolve the logistics of a permanent separation. Instead, alternative dispute resolution (ADR), such as mediation and arbitration, can help both partners reach solutions so they can live in a private and less acrimonious way. In this article, Ramsden Lawyers Family Law team cover what mediation and arbitration are, their pros and cons, and answer frequently asked questions.
What is Mediation?
Mediation is a process where an impartial professional helps both parties reach mutually agreeable solutions to the issues in their divorce or separation. Mediators help both parties discuss their preferred outcomes but do not make decisions. You can try to resolve matters such as the division of assets, the division of debts, child custody, child support, and alimony through mediation. Any issues you agree on in mediation will be memorialised in a nonbinding memorandum of understanding that your mediator draws up.
Besides a do-it-yourself divorce, mediation is the least expensive way to end a marriage because the mediator is the only person you must hire. However, even though you don’t have to hire legal counsel for mediation, you may want to do so. The mediator must be impartial, meaning they can’t advise either party. You can always try mediation and potentially resolve specific issues, then take your remaining issues to an arbitrator.
What is Arbitration?
If you and your partner can’t agree on outcomes, arbitration may be your next best option. While mediation is nonbinding, arbitration allows for judgments. You and your partner will first need to agree on the choice of an arbitrator, who will act as a private judge. An arbitrator needn’t be an actual judge; they could be an attorney or accountant, among other options.
During the arbitration, each partner may present evidence and employ witnesses to support their position, making it feel like a trial and more contentious than mediation. The arbitration agreement must carefully follow detailed requirements. Ultimately, a public judge must approve your arbitration agreement to make it legally binding.
Pros of Mediation and Arbitration – Alternative Dispute Resolution
- They can save time and money. Litigating your divorce in court could draw out proceedings over a year. Alternative dispute resolution could wrap up your divorce within weeks. Even if you hire legal counsel, avoiding trial can help preserve assets, as your legal bills for appearing in court can be substantial.
- They help keep family matters private. Litigation becomes a matter of public record. Mediation and arbitration are more likely to maintain your family’s confidentiality.
- They can be less stressful for children. Taking child custody issues to court means leaving decisions up to a judge. The outcome may be different from what the children or parents would prefer. A trial is also usually more acrimonious and can leave children feeling caught in the middle or hostile toward both parents.
- They allow both partners to retain control over outcomes. In litigation, a judge may resolve your issues in ways that neither you nor your partner like. Mediation and arbitration give you more control.
- They’re not all-or-nothing. You don’t have to resolve 100% of your issues outside of court for mediation or arbitration to make your divorce or separation easier.
- They don’t preclude going to court later. If you can’t work out specific issues in mediation or arbitration, you can take the unresolved matters to court.
The Drawbacks of Mediation and Arbitration for Divorce
Divorce is a complex and emotionally charged process. Many people are interested in alternative dispute resolution (ADR) methods such as mediation and arbitration to avoid a costly and stressful court trial. While mediation and arbitration can be less expensive and less adversarial than going to court, some drawbacks exist. In this article, we will discuss the cons of mediation and arbitration and explain when it may be appropriate to seek legal representation.
- You May Still Need Legal Advice
Mediation and arbitration may save you money compared to a court trial, but there may be better solutions for everyone. One disadvantage of ADR is that the mediator or arbitrator needs to give you legal advice. Therefore, if you are still getting familiar with family law and divorce proceedings, you may get the best outcomes with legal representation.
If you are still determining your legal rights or the best way to achieve your goals in a divorce, it is wise to consult with a divorce attorney. Even if you only hire an attorney hourly rather than on a retainer, you can benefit from their expertise and experience in family law.
- Compromise Is Necessary
Mediation and arbitration require both partners to work together and reach a compromise. While this can be an advantage in some cases, it can also be a disadvantage if one or both partners are unwilling to negotiate or compromise. Mediation or arbitration may not resolve your divorce issues if your partner is unwilling to cooperate.
- No Right to Appeal
Another drawback of arbitration is that you cannot appeal the arbitrator’s decision. Once an arbitrator makes, a decision is generally final and binding, even if one spouse is unhappy with the outcome. This can be a significant disadvantage if you believe the arbitrator made an incorrect or unfair decision.
- Hiding Assets and Liabilities
Mediation or arbitration may be inappropriate if you suspect your partner hides assets, income, or liabilities. In court, you can subpoena financial records and other documents to help you uncover hidden assets or income. In ADR, however, there needs to be more transparency, and it may be easier for one spouse to hide assets or liabilities.
- Not Appropriate for Abuse Cases
Mediation and arbitration may not be appropriate if there is a history of physical violence, emotional abuse, or substance abuse in the marriage. In these cases, a judge’s orders may be necessary to ensure the safety and well-being of the parties involved. If you or your children have been subjected to abuse, seeking legal advice and protecting yourself and your family is essential.
- Outcome Not Legally Binding
In mediation, the outcome is legally binding once you obtain a consent order from a judge. This means that if one party changes their mind or fails to comply with the agreement, you may need to go to court to enforce the terms of the agreement. To avoid the time and expense of a court trial, you should ensure that your mediation agreement is as detailed and comprehensive as possible to avoid misunderstandings or disputes.
FAQs – Alternative Dispute Resolution
If you’re considering a divorce, you may wonder if there are alternatives to going to court. Fortunately, options allow you to divide assets, seek alimony, make child custody and child support arrangements, and finalise your divorce without going through a court trial. Let’s look closely at some frequently asked questions about these alternative options.
Q: Are There Alternatives to Divorce in Court? A: Yes. Mediation and arbitration are two popular alternatives to divorce in court. With the help of a professional mediator or arbitrator, you can work with your spouse to agree on the details of your divorce. Once an agreement is reached, you can get a consent order to bind your decisions legally.
Q: Do I Need a Divorce Attorney If I’m Not Going to Court? A: While you don’t need a divorce attorney if you’re not going to court, it’s essential to remember that the mediator or arbitrator cannot give you legal advice. You may not get the best outcomes without legal representation, particularly if your spouse is hiring a divorce attorney or family law attorney and you’re not. Hiring an attorney to advise you during mediation or arbitration can save you money overpaying a retainer.
Q: How Much Does Mediation Cost? A: Mediation is generally less expensive than litigation, but the cost will depend on several factors. The cost of mediation will depend on the mediator you choose, the number of hours your mediation takes, and whether you hire an attorney to advise you.
If you’re considering a divorce, knowing there are alternatives to going to court is essential. Mediation and arbitration offer a less stressful and expensive way to finalise your divorce. However, it’s essential to remember that legal representation can help ensure the best outcomes, especially if your spouse has legal representation and you don’t. By understanding your options and seeking the help of a professional mediator or arbitrator, you can make the divorce process as smooth and stress-free as possible.
RAMSDEN LAWYERS – HOW WE CAN HELP WITH ALTERNATIVE DISPUTE RESOLUTION
Ramsden Lawyers’ family law team can aid and guide with alternative dispute resolution (ADR) methods in a divorce or separation. ADR methods allow couples to resolve their disputes outside the court system, which can be less expensive, less time-consuming, and less adversarial than going to court. Ramsden Lawyers’ family law team can help clients choose the most appropriate ADR method for their specific case, guide clients through the process, and provide advice and representation during the negotiation and settlement.
If you are going through a divorce or separation and want to avoid the time-consuming and adversarial court process, consider alternative dispute resolution methods with the help of Ramsden Lawyers family law team. Our team can assist you with mediation, collaborative practice, arbitration, and negotiation and help you choose the best method for your case. Don’t let the stress and expense of court proceedings weigh you down – act now and reach out to Ramsden Lawyers’ family law team to learn more about our ADR services. Contact us today to schedule a consultation and take the first step towards a more peaceful and efficient resolution of your family law matter.