25/03/2023
The amount of conflict and emotion in a divorce varies from case to case and largely depends upon the parties themselves and whether bitter feelings exist before they ever get to court. However, in any litigation a certain amount of conflict is unavoidable because of the nature of the system. Court proceedings are adversarial by nature, and it is hard to overcome the feeling that, for one side to win, the other must lose.
For couples seeking an alternative to the courtroom, the many forms of ADR may offer a solution. In mediation, the parties work together to resolve the issues in their divorce with the help of a neutral third party trained in the art of conflict resolution who helps the parties explore their interests, keep their emotions in check, and work toward a mutually agreeable solution. Mediation is usually a non-binding process, and the parties may always go to court or try another method if the mediation does not succeed. In mediation, the parties are most often represented by their attorneys who either speak for them or advise them. Since the mediator cannot offer legal advice, it is vital that the parties have access to an attorney throughout the mediation to ensure that any settlement fairly reflects their desires and protects their legal rights.
Collaborative Family Law is a newer form of ADR which is gaining in popularity as more attorneys and their clients find success with it. The collaborative model is similar to mediation, except that the commitment to the process is much greater. Although it is not necessarily binding, the attorneys agree up front that they will not represent the client in court should the process fail. This commitment removes a common criticism of mediation, which is that since it is non-binding there is no incentive to succeed, and the parties merely use the process as a free tool for discovery and to get all they can out of the other party before moving on to court. In the collaborative model, a successful outcome is the paramount concern of everyone involved.
Another benefit of ADR is that it is a private proceeding, as opposed to a court proceeding, where hearings and all documents filed by the court are accessible by the public or the press. People with a need to keep their financial affairs and other matters confidential may want to consider ADR. Parties who are not committed to the collaborative model of resolving their divorce but who still have a need for privacy may avail themselves of a private judge. Through private judging, the divorce proceeding may be handled in every respect like a courtroom litigation, except that the proceedings and their outcome are not open to the public.
