Wednesday, March 6, 2013

Alternatives to Litigation: Mediation and Arbitration


The divorce process does not have to resemble the movie “War of the Roses”.  Today, there are alternatives to divorce that promote a more conciliatory process than traditional litigation.

Mediation is a process by which both parties meet with a mediator to try to resolve their differences amicably.  The mediator is a neutral, trained professional that will attempt to assist the parties in resolving all issues including but not limited to custody, support, and asset division.  During mediation, each party is entitled and encouraged to review agreements with his/her own independent legal counsel.  A benefit to mediation is that parties can reduce their legal fees by not spending tireless hours at the courthouse fighting over the issues that could be addressed through mediation.  Additionally, because mediation promotes problem-solving and not litigating, this process is beneficial for the entire family, including the children.  Finally, mediating a divorce allows the parties to retain control over what happens in their case rather than leaving these life changing decisions to a Judge.

Another alternative to traditional litigation is collaboration.  In collaboration, both parties agree not to go to Court and agree to disclose all information that is relevant to the divorce.  Both parties are represented by counsel and that representation will terminate if the collaborative process fails and either party begins court proceedings.  In addition to counsel, the parties may jointly engage mental health professionals, financial consultants or other experts as needed.  Similar to the role of the attorney, the engagement of these experts would terminate if collaboration failed.  The collaborative process allows the parties to receive the support of trained professionals without the adversity of litigation.

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