Divorcing couples do not always have to wash their dirty linen in the courtroom. A lot of married couples choose to settle their divorce privately to avoid the acrimony and bitterness that can accompany a lawsuit. There are several ways a divorce can be settled without going to court including mediation, collaborative law, and arbitration.
The Divorce Mediation Process
In a divorce mediation, the divorcing spouses negotiate with each other with the help of a neutral third party, a mediator. The mediator guides the divorcing couple to reach an agreement that is acceptable to both, identifying in the process the needs of each couple and any children and the aspects of the agreement that addresses those needs. The mediator doesn’t have the power to make decisions. The mediator instead proposes solutions that are in the best interest of both parties.
The mediator meets with the divorcing spouses and their attorneys at least once in a conference setting. There may also be meetings with the parties individually as well. Many experienced mediators will utilize the conference setting to go over the rules of mediation and try to identify those areas that the parties have already been able to reach an agreement and the areas that require the mediator’s assistance. Frequently the mediator will separate the spouses with their respective attorneys, for freer discussion of the contested issues and a reduction of possible negative and emotional reactions by one spouse to the other, which can impede reaching an agreement.
Divorce mediation has the following benefits
- Mediation is less costly and less time-consuming than a lawsuit and is usually free of the emotional distress associated with a divorce trial.
- Mediation helps avoid the hostility and resentment that often accompanies a courtroom divorce while fostering goodwill, respect, and a better environment for future collaboration.
- The focus of mediation is on encouraging both parties to consider the best interests and concerns of both spouses and any children involved.
- Mediation protects the privacy and confidentiality of the divorcing couple.
While Texas laws do not require mediators to be lawyers, many going through a divorce in North Texas hire a seasoned Dallas divorce attorney to act as mediator. A mediator who is a lawyer is not acting in that capacity when serving as a mediator, cannot give either party legal advice, and cannot prepare the final documents to complete the divorce, although many will prepare the mediated settlement agreement as the parties work out the details of the agreement reached.
Collaborative divorce is similar to mediation in that the two spouses seek to come to an agreement amicably, without going to court. Collaborative divorce has the same benefits of mediation in that it is less costly, more private, and less stressful than a trial. Collaborative divorce focuses on reaching an outcome that is mutually beneficial for all and preserves a better climate for future cooperation between the spouses.
In collaborative law, both parties retain specially trained counsel. Both collaborative divorce attorneys and the divorcing spouses sign a “no-court” agreement. The parties meet, both together and separately, in order to settle all facets of the divorce including asset division, custody, visitation, etc. Depending on the needs of the parties and the size of their estate, sometimes other specialists are brought into the collaborative process to assist the parties based on the issues in the divorce, with such individuals being financial advisers, accountants, or psychologists. If negotiations break down and the divorce must go to court, both attorneys must withdraw, and new counsel must be secured.
Divorce Arbitration Process and its Benefits
A divorce arbitration, while not as common, may be an option when mediation and collaborative divorce are not and the divorcing spouses do not wish to go to court. Arbitration is an alternative to a courtroom trial and the case is heard in a private setting before a divorce arbitrator rather than in a public courtroom. The hearing is called an arbitration hearing. Unlike a court trial, which occurs at a time and place decided by the judge, the divorce hearing occurs at a time, date, and place convenient to the divorcing couple and the arbitrator.
The arbitrator is chosen by the divorcing spouses and their attorneys. The divorcing spouses provide the arbitrator with the specific issues that are preventing the resolution of their disputes. They may also define the procedure to follow and the deadline for the arbitrator to give his or her decision. After hearing arguments of both attorneys on specific issues, the arbitrator gives his or her decision, which is called an award. The arbitrator’s award cannot be appealed.
Arbitration has the following benefits:
- The arbitrator is chosen by the divorcing couple based on the arbitrator’s experience in their specific areas of interest, such as real estate and taxes.
- Divorcing spouses can define the specific issues that need to be addressed during arbitration.
- The time, date, and venue of arbitration hearing are chosen by the divorcing couple according to their convenience.
- Arbitration protects the privacy and confidentiality of the divorcing couple.
- Arbitration is less costly and less time-consuming than going to the court and may have less of the emotional distress associated with a lawsuit.
If choosing arbitration, the two parties must come to an agreement on the choice of arbitrator. Divorcing spouses may go through arbitration without an attorney, but many choose to hire one. The arbitrator cannot typically draw the final papers for the divorce, since such a role is that of an attorney or the combined efforts of both parties’ attorneys. Board-certified family law attorney Mary Ann Beaty can help you determine if one of these methods of alternative dispute resolution is the right choice for you.