Within the divorce process, there are a number of individual decisions to be made, including child custody, child support, spousal support, the division of property, and more. Before your divorce can become final, each of these decisions must be approved by the family court for inclusion within the divorce order. Unfortunately, many of these issues can prompt contention and dispute, and can often take some time to settle during litigation.
Many divorcing couples choose to engage in alternative dispute resolution when a disagreement arises, instead of prolonging the court process. Alternative dispute resolution, also known as ADR, refers to any other means of settling a dispute away from the courtroom. Instead of a one-size-fits-all solution, ADR is a category including multiple options for those looking to avoid traditional litigated family law strategies.
Why Consider ADR?
Alternative dispute resolution methods are useful for a number of reasons, including lower cost, a gentler impact on children, as well as greater flexibility and control over the situation’s outcome. Although ADR is not feasible in all cases of divorce or separation, it is a viable option worth consideration. If you believe you and your former spouse could arrive at a mutually beneficial solution outside of court, ADR could save you significant time and money as opposed to traditional litigation.
In addition, ADR leaves the majority of the outcome in your hands, rather than the final agreement being determined by a judge. You can also settle disputes in relative privacy instead of in open court. If you and your ex-partner are not open to negotiations, or if one party is dishonest regarding issues such as income or assets, then ADR is probably a realistic choice. However, for most divorcing couples, the flexibility and control offered by ADR is a positive.
What Kinds of Alternative Dispute Resolution are Available?
There are three common types of ADR available to divorcing or separating couples. These include mediation, arbitration, and collaborative divorce. The following is a detailed explanation of what each of these methods entails and when they may be most useful.
When you and your ex-partner opt for mediation, you can avoid undergoing a lengthy litigation process in court. Through this low-conflict and strategy, both parties will be able to sit down together, joined by an experienced mediator. This mediator, typically a family law attorney with significant training in mediation, will act as a neutral third party to the discussion. Rather than making any declarations or attempting to lead you in a particular direction, the mediator will work alongside you and your ex-partner to come to a mutually agreeable solution.
The mediator will help you to discuss and work a number of potential issues in your divorce, facilitating productive negotiations until an agreement is reached. Issues may include the division of assets and debts, child custody and visitation, child support, spousal support, and more, depending on the circumstances of your divorce or separation. Once an agreement is reached, your mediator will create a non-binding Memorandum of Understanding, or MOU. Each party will be given the opportunity to review this MOU with their own lawyer before it is finalized. Then, once all aspects have been mutually reviewed and agreed upon by all parties, the MOU becomes a Marital Settlement Agreement. This finalized agreement will then be presented to the court to request an uncontested divorce.
Arbitration is also a means to avoid conventional litigation strategies and grants you and your divorce lawyer the chance to present your side of the situation before an arbitrator. Although this is a similar procedure to presenting your case before a judge, involving discovery, interrogatory, and argument phases, it is a much quicker and more efficient process than dealing with the court. Like other forms of ADR, however, arbitration offers all parties greater flexibility and control over the outcome than traditional litigation. While a judge is automatically assigned to your divorce case, you will have the option to choose your arbitrator.
So, what is the main distinction between mediation and arbitration? The overall process is quite similar, at its heart. Like a mediator, the arbitrator will act as a neutral third party, helping to guide the conversation. However, unlike a meditator, the arbitrator will act much like a judge once the end of the process is reached. While mediation is dependent upon the agreement you come to with your ex-spouse, an arbitrator will issue a decision of their own, much like a judge would. Arbitration can be binding or non-binding, depending on the terms you set.
In order for a collaborative divorce to be successful, both parties must hire a lawyer familiar with the process. Both parties will then work alongside their lawyers, agreeing not to litigate and remaining fully transparent with one another. Aside from the divorcing parties and their respective attorneys, collaborative divorce typically involves two neutral parties—a financial professional and a mental health professional. These neutral players will help to guide the divorcing couple through the various aspects of their case.
The process of collaborative divorce hinges upon the agreement between the two parties. If either side opts to file an action or petition with the courts aside from an uncontested divorce, both attorneys must withdraw from the case. Much of the time, collaborative divorces can be successful in reaching a divorce decision, allowing a speedy resolution to the case. Compared to the more traditional discovery process that takes place during litigation, this method is typically both less expensive and more effective.
How to Know if Alternative Dispute Resolution is Appropriate For You
First, it is important to realize that ADR was not developed solely for the divorce process. It can also be used during parenting coordination and child custody agreements at any stage of the parent-child relationship. Others choose to use ADR to create and validate pre- and post-nuptial agreements as well as child and spousal support arrangements.
Remember, in order for ADR to work effectively, both sides must be committed to negotiating and compromising with one another. For some divorcing couples, it can be difficult to set aside differences and work together towards a fair and objective agreement. If you are looking to save time and money on the divorce process and are comfortable compromising with your ex-spouse, ADR could be an option for you.
Consult With an Alternative Dispute Resolution Attorney in St. Charles, MO
If you are looking to file for divorce or begin the process of alternative dispute resolution in St. Charles, but are not sure where to begin, consider the alternative dispute resolution attorneys at Stange Law Firm. Our firm has been aiding families in St. Charles and the surrounding areas for nearly two decades and have the skills and temerity to guide you through this process. For more information about alternative dispute resolution or to schedule a pre-divorce consultation, contact us online today.