PROCESS OPTIONS
EXPLORING OPTIONS HELPS YOU MAKE THE BEST DECISION FOR YOUR FAMILY
MAKE THE BEST DECISION FOR YOUR FAMILY
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I. INTRODUCTION
There are several process options for parties (like you and your spouse or partner) seeking to divorce or reorganize their families (undertaken by unmarried partners with children or significant assets and liabilities). Choosing the best process can be overwhelming. While not exhaustive, this guide will help you decide.
II. OVERVIEW
The diagram below provides an overview of process options. As the scale moves from left to right, the options become increasingly formal, contentious, expensive, time-consuming, uncertain, etc.
The best process to meet parties’ unique needs may be anywhere along the scale or somewhere in between. Hybrid processes, like med-arb or processes of you own making, may be the most useful.
III. PROCESS OPTIONS
DIY (Do-It-Yourself)
DIY allows parties to divorce or reorganize their families on their own, without attorneys and with little to no involvement from the court. It’s a private and voluntary. Both parties must agree to participate.
Parties negotiate disputed matters to their mutual satisfaction and then file paperwork with the court. The court reviews the paperwork for fairness. Most DIY divorces and family reorganizations are readily finalized.
The DIY process has many advantages (see the comparison chart above) but is not without risks. Hidden legal and financial issues may cause parties to “step over a dime to save a penny.” Fortunately, these risks can usually be avoided by consulting with a family law attorney and, perhaps, a financial professional.
Mediation
Mediation is a voluntary process for parties —married and unmarried — to divorce or reorganize their families. Both parties must agree to participate.
Mediation is a private process. It occurs outside of court. So, there is no public airing of parties’ personal matters in court.
Parties, the mediator and any other participants must agree to abide by confidentiality and privilege rules. This protects the participants and the process.
Parties make all decisions, not the mediator or the court. The mediator facilitates the parties’ decision-making process. They help parties:
(1) identify issues
(2) explore possible solutions
(3) evaluate proposed solutions
(4) reach a mutually agreeable settlement.
They also help with communication. The court’s only role is to finalize the divorce or family reorganization. This can be accomplished by submitting paperwork to court. Parties rarely have to appear in court.
Mediation is a flexible process. Parties are free to expand upon the basic model by agreeing to include neutral professionals in fields like finance and child psychology, clergy, lawyers, support animals, etc.
In addition to flexibility, mediation has many advantages, as compared to litigation, including:
(1) more party control
(2) greater certainty
(3) less conflict
(4) more child protections
(5) lower costs
(6) greater efficiency
(7) less time-consuming
(8) more privacy
(9) more enduring agreements—agreements that are less likely to be challenged or later modified in court.
Mediation has a few potential disadvantages, including:
(1) no “day in court”
(2) nondisclosure of information by untrustworthy parties
(3) lost time and money if parties fail to reach settlement
For more information, click the “Contact RL” button below.
Collaborative Law
Collaborative law is a voluntary, private process that allows parties to work with a team of their choosing to resolve family disputes outside of court.
The team includes parties, collaborative lawyers, and, if parties agree, neutral professionals. Parties, and not other team members, make all decisions. Professionals provide support and information in areas like child psychology and finance. Collaborative lawyers also provide support but are not neutral. Each party hires their own collaborative lawyer to provide advocacy and counsel. Collaborative lawyers are not like family law attorneys. Collaborative lawyers are settlement experts, not courtroom litigators. To promote settlement and protect the process, parties must agree that lawyers and other professionals will withdraw if matters are contested in court.
This withdraw clause is one of the key features distinguishing collaborative law from mediation. The use of party attorneys is another. Collaborative law may utilize mediators. However, typically a neutral professional serves as a facilitator.
In all other respects, both processes are very similar. Mediation and collaborative law are voluntary, party-controlled, private and confidential. Their advantages and disadvantages are the same.
For more information about collaborative law, and specifically, collaborative law representation through RL, please click the “Contact RL” button below.
Arbitration
Arbitration is a process that allows parties to select an impartial and neutral third party, an “arbitrator,” to make decisions for parties concerning their disputes. Arbitration may be ordered by the court in matters not involving children. Alternatively, parties may agree to resolve some or all of their issues in arbitration.
Arbitration resembles trial in many respects. In fact, parties should prepare as if they were going to trial. Parties may hire attorneys or represent themselves. Witnesses, including the parties, may be called and cross-examined. Parties may also present evidence pursuant to the Rules of Evidence.
An arbitrator’s decisions may be binding or non-binding. Binding decisions are appealable. Non-binding decisions may guide parties who are stuck on a specific issue in mediation.
Advantages of arbitration, as opposed to other outside-of-court processes like DIY, mediation, and collaborative law, include:
(1) an experience like a “day in court”
(2) party control in the selection of an arbitrator
(3) presentation of testimony, evidence and argument
(4) a higher authority’s determination of contested issues
Disadvantages include:
(1) less control
(2) less certainty
(3) more conflict given arbitration is adversarial in nature
(4) the possibility of binary, win-loose outcomes
Litigation
The traditional process for resolving family law disputes is litigation. It is the most formal process available to disputing parties. The process may be voluntary or involuntary. A judge, not a jury, decides all issues based on the law and equitable principles. Parties may represent themselves or hire attorneys. The outcome is usually binary. There is a winning party and a losing party.
Litigation begins when a party files a petition for divorce or some other form of family reorganization. The non-filing party must respond in a timely manner. Failure to do so may result in default, though most parties respond appropriately and the process continues. Parties:
(1) file requests
(2) exchange information
(3) make motions
(3) take depositions
(4) collect evidence
(5) retain experts in preparation for trail
At the same time, parties are in negotiations to resolve any and all issues outside of court. They also participate in court-ordered mediation through county resolution services or private mediation.
For a variety of reasons, over 90 percent of all litigation cases settle prior to trial. Despite these results, litigation is the standard against which all other processes are compared. Its advantages include:
(1) “a day in court”
(2) formality
(3) subpoena power to compel disclosure of information
(4) power to hold defiant parties in contempt of court
(5) safety
(6) decision-making authority
Litigation’s disadvantages, as compared to other processes, include:
(1) less party control
(2) inflexibility
(3) greater uncertainty
(4) more conflict that may negatively impact children and ongoing co-parenting relationships
(5) less efficiency
(6) more time-consuming
(7) greater costs
(8) no privacy
Due to these disadvantages and limited judicial resources, courts offer alternative processes to keep litigating parties out of court. Parties must both agree to participate. These processes include settlement conferences (judges serve as mediators) and informal domestic relations trials (trial-like process with relaxed rules and shorter time frames).
IV. Conclusion
This guide is intended to provide general information. It is not legal advice. RL advises that you consult with a family law attorney before undertaking any process to divorce or reorganize your family. There’s too much at stake for you not to consider all of your options.
If you have questions about RL’s mediation and collaborative law services, please click on the “Contact RL” button below.