A court hearing is not required for a divorce or legal separation to determine how property will be divided, who will have custody of the children, and how frequent visitation can take place. However, a court hearing to decide the details of a divorce is not an option and is considered the last resort.
Alternative dispute resolution (ADR) options such as mediation or arbitration can be used to help both parties reach a solution they can live with privately and without causing any conflict. A hearing in family court may be required in some states.
What is Mediation?
Mediating is where an impartial professional assists both sides to reach mutually acceptable solutions to their issues regarding divorce or separation. Mediators are impartial professionals who help both sides discuss their desired outcomes, but they don’t make any decisions. Your mediator will draft a memorandum to understanding, which is non-binding.
Mediation is a cost-effective way to end a marriage. You don’t need to hire legal counsel to facilitate mediation. A mediator must be impartial and not offer advice to either side.
Mediation can be used to resolve some issues first, and then you can take the remaining issues to an arbitrator.
What is Arbitration?
Arbitration may be the best alternative if you and your partner are unable to agree on the outcome. Arbitration allows for binding judgments, whereas mediation is not binding. First, you and your partner must agree on who the arbitrator will be. He/she will act as a private judge. The arbitrator does not have to be a judge. They could also be an accountant or attorney.
Arbitration can be a trial-like process where each party may present evidence or employ witnesses to support their case. It is more contentious than mediation and feels similar to a trial. It is important that the arbitration agreement adheres to all requirements. To make your arbitration agreement legally binding, it must be approved by a public judge.
Pros of mediation and arbitration
These can help you save both time and money. A divorce proceeding in court can take up to a year. Alternative dispute resolution may be able to end your divorce proceedings in a matter of weeks. Avoiding trial, even if you retain legal counsel, can help preserve assets. The legal costs for appearing in court may be significant.
They keep family matters private. Public records can be made public if there is litigation. Arbitration and mediation are more likely to preserve your family’s privacy.
They can be less stressful than for children. Child custody matters should be taken to court. This means that the decision is up to a judge. Parents and children may not like the outcome. The trial can be more bitter and leave the children feeling trapped or hostile towards both parents.
Both partners can retain control of the outcome. A judge can resolve your disputes in ways that you or your partner do not like. Arbitration and mediation give you more control.
They are not necessarily all-or-nothing. To make your separation or divorce easier, you don’t need to resolve all your issues in court.
These agreements don’t prevent you from going to court in the future. You can also take unresolved issues to court if you are unable to resolve certain issues through mediation or arbitration.
Cons of Arbitration and Mediation
A lawyer may be necessary to provide advice. ADR is less costly than going to court, but you might still need legal representation to ensure the best possible outcome. A retainer may be more expensive than hiring a lawyer for an hourly fee.
If both parties are unwilling to find solutions, they won’t be able to succeed. Arbitration and mediation require compromise.
An arbitrator’s decision cannot be appealed. Even if one spouse disagrees with the decision, the courts will usually uphold it.
It might be easier to conceal assets and liabilities. It may be easier to hide assets and income than it is to conceal liabilities. A court case could be better because financial records can be subpoenaed.
These orders may not be appropriate if abuse is involved. A judge’s order may be the best protection if there is any evidence of abuse or physical violence.
Mediation is not binding. To make your agreement enforceable, you must obtain a consent order from the judge.
Commonly Asked Questions about Mediation and Arbitration for Divorce: Alternatives to Litigation
What are the Alternatives to Divorce at Court?
Yes. Yes. You can divorce, get alimony, arrange child custody and support, and you can also divide assets without the need for a court trial. These matters can be handled by professionals through mediation or arbitration. To make your decisions legally binding, you can obtain a consent order after reaching an agreement.
If I’m not going to court, do I need a divorce attorney?
No. The mediator or arbitrator can help you and your spouse reach an agreement on the details of your divorcing. These professionals can’t give advice. Even if your spouse is seeking legal representation (e.g., a divorce lawyer or family law attorney), you may not be able to get the best results.
What is the Average Cost of Mediation?
Although mediation costs less than litigation it will still cost more. The exact cost of your mediation will depend on many factors. You can choose the mediator that you want, how long the mediation takes, and whether or not you have an attorney on your side.