September 12, 2019
When a couple chooses to end their marriage, there are disputes that must be resolved as part of the divorce. Division of property, child custody arrangements, child support and alimony are just a few of the issues that require clarity for each party to move forward with their lives. Resolving these issues, incident to getting divorced, can happen without the lengthy, expensive process of litigation; more couples than ever are now choosing alternative dispute resolution to end their marriage.
Where litigation requires multiple court dates and a formalized process to obtain a judge’s determination of disputes, alternative methods, such as mediation and arbitration, offer a more customized path to dissolving a marriage. These approaches both share the benefit of being more flexible, faster, and less expensive than litigation.
Before deciding between litigation, arbitration or mediation, it’s important to consult expert legal counsel. The biggest challenge to using alternative dispute resolution often lies with the divorcing parties themselves. According to William J. Thompson, Esq., a shareholder at Archer & Greiner in Haddonfield, New Jersey, “Mediation aids the parties in directly working through the issues in a less formal setting, but requires open communication, candor, and a willingness to compromise. Arbitration, although more formal that mediation, nevertheless allows the parties to streamline the factfinder’s role allowing a quicker result than a court trial. ”
If both parties agree to resolve their divorce outside of the courthouse, it’s important to consider the benefits of both mediation and arbitration, and to understand what makes them different.
In mediation, the two parties to the divorce select a single mediator who supervises direct negotiation. Parties may appear with or without counsel. The mediator will not give legal advice or order a result, but instead guides the parties to reach resolution. This approach works best when the parties are able to communicate openly or are willing to be conciliatory, and even helps to establish the foundation of a future relationship. Since this is a direct negotiation, the process is completely confidential, which greatly benefits parties discussing private financial or sensitive matters. Once agreement is reached, a written Memorandum of Understanding is prepared by the mediator, who frequently recommends that the parties consult with independent counsel who can assist in finalizing a formal written agreement.
If both parties are able to communicate openly, this approach allows for very customized solutions, as the negotiation is not bound by statute or case law, as it would be in litigation. “Most important is choosing the right mediator: someone who is professional, patient, a good communicator and experienced in matrimonial matters” said Archer’s Marie E. Lihotz, a former member of New Jersey’s judiciary. ”The parties must develop trust with the mediator so they candidly discuss needs and concerns in settling their case,” Lihotz added.
Like mediation, arbitration allows divorcing spouses to determine how formal or informal a process to use, and it too has the advantage of confidentiality. Unlike mediation, though, arbitration retains many of the hallmarks of litigation. The two parties select a single arbitrator and work with their own individual counsel to prepare for a hearing—as in litigation, each side presents documents, witnesses, and other arguments.
The neutral arbitrator then renders decisions about the divorce disputes, applying the substantive law to the specific facts presented. One concern may be that an arbitrator’s decisions are final, and generally not reviewable by a court. Yet, the parties can include a private appellate arbitration process, to provide additional review, much like the state’s Appellate Division. Arbitrated divorce hearings can be completed quickly, often in just a week, with a decision generally issued within forty-five days and retain many of the benefits of litigation, including each spouse having separate counsel.
Divorces can take one to two years to wind their way through the court system and trials are public hearings. Likewise, parties have no say in which judge is assigned to the case. Most distressing is the litigation process can drag on, be expensive, and the results can be unfavorable or unexpected. “Trials are stressful and tedious. Often a judge’s schedule leaves little time during a week to preside over a trial. Most people don’t realize the downside of litigation,” said William Thompson.
Determining the right approach to reach the final result when divorcing can be challenging. That decision is influenced by factors ranging from the state of the parties’ relationship, to financial matters, and timeliness. It is essential to engage the correct counsel early in the process — not only to represent each spouse’s interests in the proceedings, but to advise between mediation, arbitration, or litigation to ensure the most painless dissolution of the marriage.
