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Every marriage is different; so is every divorce. It only makes sense that there be different options to resolve divorce and other family law disputes. When most people think of divorce, they imagine a courtroom trial. The truth is that there are several types of alternative dispute resolution (ADR) that don’t involve a judge making decisions about your future.
How do you know which divorce option is right for you? The best way is to consult with an experienced family law attorney to explore your choices in light of your unique situation. To help prepare you for such a meeting, it’s a good idea to understand what is involved in the various types of divorce dispute resolution.
Divorce litigation is the divorce process with which most people are familiar. A litigated divorce begins when one spouse files a lawsuit at the courthouse and serves the other spouse with a Summons and Petition, notifying them of the lawsuit. Most litigated divorces settle; if no settlement is reached, the case goes to trial.
Divorce litigation has some advantages. It is a structured process, which can be good if you and your spouse need help staying on track. For example, in litigation, you are required to exchange information and documents that will help you reach a settlement or build a case for trial.
The structure of litigation is especially helpful if there is a power imbalance between spouses, such as when domestic violence is an issue. Litigation may also be a good choice when spouses do not trust each other to negotiate fairly and honestly, when one spouse doesn’t want the divorce, or when there are substance abuse or mental health issues.
Disadvantages of litigation include that it is by nature an adversarial process. Therefore, it can be more contentious than other dispute resolution methods. As a result, it may take longer, cause more stress,, and be more costly.
Divorce mediation is a form of ADR. A neutral third party, the mediator, meets with the parties and helps them identify issues they need to resolve. Rather than deciding the dispute, the mediator facilitates communication between the spouses, enabling them to come up with solutions that meet their family’s unique needs. Mediation tries to help people reach win-win solutions that they can both live with. If a couple resolves all of their disputed issues in mediation, the agreement can be incorporated into a divorce settlement prepared by the couple’s lawyers. The couple may still need to appear in front of a judge to finalize the divorce, but that appearance is largely a formality.
Advantages of mediation include that it gives divorcing spouses more control over the terms of their divorce. They can be as creative as they want in problem solving. Because they have more input, they tend to be more satisfied with the terms of their divorce and more willing to comply with them. As a result, they may be less likely to end up in court to try to enforce or change their agreement.
Other advantages of mediation are that it is usually less stressful than litigation, since it encourages cooperative problem-solving rather than win-lose scenarios. A mediated divorce may also be quicker and less expensive than a litigated divorce.
Collaborative divorce is a form of ADR invented right in Minnesota by Stu Webb, a divorce attorney who was getting burned out by the hostility of divorce litigation. The process is now available worldwide.
In Collaborative divorce, spouses each have their own divorce attorneys and are usually supported by other professionals as well, including a financial neutral to help them figure out money issues; divorce coaches who help them overcome emotional issues that are a barrier to a successful divorce; and child specialists who serve as the voice of their children in the process.
The couple and their professionals sign a participation agreement agreeing to communicate openly and honestly and not to resort to litigation. That frees the spouses up to do things like apologize to each other without fear that what they say will be used against them in court. Divorce negotiations take place in a series of meetings between the spouses and their professionals. If the Collaborative process should break down and the couple does decide to litigate, they must find new attorneys. Essentially, they need to start all over with the divorce process.
Advantages of Collaborative divorce are similar to those of mediation. The couple has the flexibility to design a divorce that works for them. They can proceed at their own pace, moving along as quickly or slowly as they need to. The process is often more respectful and dignified than litigation, and as a result, usually leads to a more cordial relationship between ex-spouses. That can be a real benefit when they must continue to co-parent together after a divorce.
As with mediation, once parties to a Collaborative divorce have reached an agreement, they may have to finalize the divorce in front of a judge, but the entire dispute resolution process takes place outside of the courthouse.
While not an official type of dispute resolution, divorce attorneys often refer to the “kitchen table” divorce. In essence, the couple sits down at the kitchen table and decides the terms of their divorce. An attorney can help make sure that their divorce agreement is complete and that they have correctly filled out the legal documents required to complete their divorce.
In general, with a “kitchen table” or do-it-yourself divorce, you can get as much or as little help as you need from an attorney. Do-it-yourself divorce can be less costly, but it may not be the best option if there is a power differential between you and your spouse or you don’t fully trust your spouse. A major disadvantage is that you don’t have an attorney helping you negotiate.
To learn more about the different types of divorce dispute resolution, we invite you to contact Mundahl Law to schedule a consultation.