Separation or divorce is often a time of conflict and heartache. Yet you’re required to make difficult decisions that will impact the rest of your life.
One of the first things that you and your spouse need to decide upon is the type of dispute resolution that best addresses your unique set of circumstances. Like many people going through a divorce for the first time, you may not be well informed of the options available for resolving your divorce.
To help you make the right choice, here is a look at the options at your disposal and the circumstances under which each option would be most favorable:
This process involves the divorcing couples enlisting an independent third party (known as a mediator) to help them reach a divorce settlement. Mediations can be either private or court-ordered and are intended to encourage couples to voice their opinions and achieve a balanced solution in a neutral environment.
The primary benefits of mediation are lower divorce costs and a higher chance of reaching a balanced agreement that is favorable for both parties. This process of mediation ensures both parties adhere to the agreement, simplifying life during and after the divorce.
But to remain neutral, mediators are not allowed to provide legal advice or recommendations to either party. As such, both parties still require independent legal advice to make sure they understand the legal implications of the agreement created.
Mediation helps to bypass a protracted court case when the parties are willing to negotiate fairly. But if there is a history of abuse or mental illness, if the parties are poor communicators, or if the best interests of the children are not protected, mediation is usually not recommended.
Unlike mediation, arbitration transfers the task of decision making from the two divorcing parties to a third-party known as an arbitrator.
The arbitration process requires both parties to meet the arbitrator without their lawyers’ present, describe their goals and priorities for the divorce settlement, and then leave the final decision to the discretion of the arbitrator. This final decision is usually binding, which means that the couple will have no choice but to follow the terms of the settlement.
One advantage of arbitration is that a neutral third party takes control of the case, ensuring that essential choices about the divorce bases its finality on fact and logic rather than the emotionally-influenced opinions of the divorcees.
However, arbitration is not recommended if you would prefer to retain the power to renegotiate or challenge a divorce settlement.
This is the newest dispute-resolution option for divorcing couples that engages an entire team of professionals to help resolve the case. The professionals, including experts in child advocacy, finance, law, and mental health, are shared by the divorcing couples, while each party retains their specially-trained attorney to act as coaches.
The lawyers on both sides try to help their clients to reach an equitable settlement without going to court. If they fail to reach an agreement, the entire team has to resign, and the process starts over.
A collaborative divorce is a convenient approach as different professionals are available to handle the legal, emotional, financial, and children’s concerns that arise during the process. It is best suited for couples who can negotiate in good faith and willing to spend the time and energy to reach a mutually-agreeable settlement.
However, it is not recommended for couples who are not willing to communicate, compromise, and commit to resolving.
Very few divorces fail to reach an agreement during the Alternative Dispute Resolution (ADR) models and go to court. If the case goes to trial, both sides have a chance to make their case – with or without representation. Couples unable to reach an agreement, rely on the knowledge and the judge’s discretion for a final verdict.
However, litigation fees can be costly, and couples who cannot reach an agreement struggle with the judgment delivered to them. The use of Litigation is an option when other approaches to divorce dispute resolution have been unsuccessful.
- Pro Se / Pro Per / In Propria Persona
The Latin words mean “in one’s own person,” whereby either one or both parties choose to represent themselves instead of hiring a lawyer. When the litigant is acting as his/her own lawyer in a lawsuit, they are responsible for adequately completing all relevant legal paperwork, doing their own research, and remembering important court dates.
Legal experts recommend this option for straightforward, uncontested cases to save on legal fees. But if the divorce involves spousal support, custody, pension division, or substantial property, then Pro Se is not recommended.
Often couples want to avoid the risk of an unfavorable decision and costs associated with going to court. So they try to reach an agreement using any of the ADR (alternative dispute resolution) models.