Divorce lawyer: Alternative Dispute Resolution In Divorce
Alternative Dispute Resolution (ADR) in Divorce
When many people picture a divorce they picture intense litigation, but, in fact, the vast majority of divorce cases in New York State are filed as “uncontested” – meaning that the parties have resolved all or most of the major issues, and are seeking a divorce without having to appear in court. For every case that is filed “contested” in New York there are approximately four cases filed as “uncontested” (Report of the Matrimonial Practice Advisory and Rules Committee to the Chief Administrative Judge of the Courts of the State of New York, January 2021). Of those cases that are initially filed as “contested” only a very small portion go to trial.
According to a divorce lawyer, many couples utilize Alternative Dispute Resolution (ADR) services, such as mediation, arbitration, and collaborative divorce, in order to resolve their divorce cases. ADR measures can be taken at any time in the process. For example, the parties can go to a mediator before any official documents have been filed, and they can also go to a mediator mid-trial if they agree. Once you go down the path of a “contested” divorce, you are not stuck with it – you can settle the case at any time, and, if both parties agree, you can begin ADR work at any time.
What are the differences between the different types of Alternative Dispute Resolution (ADR)? Here is what divorce lawyer had to say:
Many couples choose mediation because it is the branch of ADR that gives the couple the most control over the situation. A mediator will work with the couple to help each person determine what an acceptable settlement agreement would be for them. If the mediator is an attorney, the mediator can provide some informational guidance about what might happen if the parties were to proceed to court. If the mediator is not an attorney, the mediator might suggest that each person consult with an attorney so they understand their rights before signing onto an agreement that potentially strays from what a court might do. A mediation is primarily driven by the parties – the topics of focus are chosen by the parties, the agreement is based on the parties’ priorities, and the application of the law is only to make sure nothing in the agreement is against the law or unlikely to be accepted by the court. When the parties reach a mediated agreement, they will then need to submit the court documents themselves, as the mediator works with both parties and cannot say they represent one party over another.
- Collaborative Law
In collaborative law, both parties have attorneys who represent their interests, but the parties and attorneys agree that they will only seek litigation as a very last resort – some collaborative lawyers even include in their retainers that they will not litigate under any circumstances, and if the parties decide to go to court, they will need to hire new counsel! The purpose of collaborative law is similar to mediation in that it is still drive by the priorities of the parties, and the application of the law is to make sure nothing in the agreement is against the law or unlikely to be accepted by the court. Once the parties reach an agreement, the attorneys can draft all of the necessary documents and file them on behalf of the parties.
Arbitration is more similar to a court proceeding than mediation or collaborative law. In an arbitration, the parties present information to an arbitrator that they jointly select, and then the arbitrator makes a binding determination about how all of the issues will be resolved. The reason parties choose arbitration over going to court is so that the process moves more quickly – there is no need to wait for space on a busy court calendar, and the arbitrator can devote more time and attention to each individual case. The downside, of course, is that the parties do not determine the issues for themselves, but this can be a positive to parties who have reached an impasse that cannot be resolved amicably. Both parties in an arbitration can be represented by their own attorneys.
If you have any questions, please contact the Kleyman Law Firm, qualified Divorce Lawyer.