In Case Phase 4, we touched on Alternative Dispute Resolution, or ADR. However, because this is such an important can common part of the divorce, it deserves more content, so you have a better understanding of what it is and how it works. Alternative Dispute Resolution is a legal term that refers to mediation.
Why Does ADR Help?
Divorces are often fraught with emotion, and it might seem as though you will never agree with what your spouse wants in the divorce. One or both of you might have feelings of anger, feel as though you’ve been betrayed, or that your spouse doesn’t deserve anything in the divorce. Giving in to those feelings might seem like the natural thing to do, but it can be counterproductive.
When a judge hears a divorce case, as well as other types of family law cases, they would like for the parties to settle their case if possible. This will avoid litigation, and can often be easier on the spouses, as they will have control over what happens in their case.
On the other hand, items that have to go to court will be decided upon by the judge. They will have the final say, and this often means that you are not going to get what you want from the divorce, and neither is your spouse. It’s better for everyone if you can resolve at least some of your issues through Alternative Dispute Resolution, or ADR.
When Does ADR Begin?
Mediation can start at any time during the divorce. It might begin immediately, and some couples will reach agreements about what should happen in the divorce even before they have filed the paperwork. Other times, it occurs later, and there might need to be more than one meeting to find areas where the couple can reach agreements.
Also, just because some of the elements of the divorce are agreed upon and can be settled, it doesn’t mean that all of the issues will be resolved. Still, reducing the number of areas of conflict can help to make the divorce process faster even if it does have to go to court.
Informal Settlement Conference
An informal settlement conference might be recommended by the court. These conferences will be held at a location the judge who is overseeing the session chooses. The location of the session will be found on the ARD order. Most of the time, these settlement conferences will last for about two or three hours. This can vary depending on how complex the case is.
Before going to the conference, each of the parties needs to provide the judge with a settlement conference memorandum at least seven days before the date of the conference. Typically, the only people who are allowed to attend the conferences will be the judge, the parties involved, and their attorneys if they have them.
The judge will be told about the background information in the case and will meet with the attorneys for each side. The attorneys, or each party if they are not represented, will then present their case to the judge. After this is done, the judge will meet with each side separately and could make offers and counteroffers to help them come to an agreement. However, an agreement can’t be forced if one of the parties does not agree to it.
In cases where they can reach an agreement, each party will sign a settlement document and the case will be dismissed.
Do You Need to Have a Lawyer?
When you are going into ADR, you don’t need to have an attorney. You can go to mediation on your own if you prefer. The same is true for the other party. However, even these mediation meetings can be tricky, and you need to be careful if you aren’t going to have an attorney. This is especially true if your spouse has an attorney.
If you have the option, it tends to be better to have an attorney attend with you. If you can’t afford an attorney for the mediation, you might still want to meet with an attorney to get some tips, which will be more affordable.
What if there is not an agreement? In these cases, one of two things will occur. In some cases, the judge might recommend a second settlement conference after more evidence is obtained. If the judge believes that the chance of settling is low, though, they may have the case proceed to trial.
What Is Arbitration?
Mediation is meant to help the spouses settle issues. Arbitration occurs with those issues where the parties are unable or unwilling to settle. This process will not be available unless both of the parties agree to it. When arbitration occurs, the parties will hire an attorney to act as a neutral third party. They essentially act as a judge for the arbitration.
One of the benefits of arbitration is that it often means you will get to have the hearing sooner than if you were to go to trial. This also tends to be less formal than an actual hearing in court.
Mediation Is a Great Option
When you go to mediation, you will often reach agreements, even on issues that you thought would be difficult. It can result in partial or final agreements that will be signed and submitted to the court. This could help you get through your divorce in less time, and it means that you have more control over what happens in your case. Even when you have just a partial agreement, it will mean that some of the more difficult elements of the divorce are finished. This can help you rest a bit easier.
Although you don’t necessarily need an attorney for mediation or other aspects of your divorce, it will be a good idea to have one on your side. Whether you hire an attorney to handle everything for you, or you only work with the attorney for certain parts of the case, it will make the process simpler.