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Exploring Your Options for Alternative Dispute Resolution in a Divorce

Published in Family Law on July 6, 2017.

divorcing couple silhouetteA divorce does not have to be drawn out in courtroom litigation and cost you and your spouse thousands of dollars in attorney’s fees.

In fact, Indiana has numerous options for alternative dispute resolution. With alternative dispute resolution, you may be able to reach a fair and equitable settlement without going to court. Some ADR methods help you save money, while others cost roughly the same as full litigation. However, the time and hassles you save often make up for the cost regardless.

Divorces Require You to Face Difficult Decisions

A divorce is not easy. Even an amicable divorce still requires that you and your spouse make decisions that impact the rest of each other’s lives.

The first item you and your spouse must decide on is the type of dispute resolution that makes the most sense for your divorce situation. You may be unaware of the options you have, which is why you should always ask your lawyer what alternative dispute options you could use in your divorce case.

Before you meet with an attorney, you can research the alternative options, discuss them with your spouse, and try to come to an agreement to make the process even quicker.

What Types of Alternative Dispute Resolution is There for a Divorce in Indiana?

To help make an educated decision for your divorce case, review this explanation of the most common options, then determine which might work for you.

Informal Settlement Conference

While most courts require formal mediation, if you can reach an agreement prior to mediation or any of the other alternatives you avoid very high costs of all out litigation as well as the relatively lower costs of mediation and arbitration.  

In many cases experienced family law attorneys can get together with their clients and act as mediators in an effort to resolve the case through settlement proposals.  The exchange of settlement offers usually takes weeks, however, when the attorneys are in the same location and their clients are readily available the exchanges can come much quicker.

There is no binding effect to a settlement in a family law case where there was no mediation.  In other words, until a court approves the written agreement either party can reject or refuse to sign the agreement.  A reneged agreement does happen from time to time which will cause the parties to essentially start over.

It is normally worth the effort to at least make a settlement proposal prior to mediation.  In the event that you’re unsuccessful, the document drafted for the purposes of settlement could be used in mediation, or as a proposed order in arbitration or after a final hearing.

Mediation

Mediation involves an independent third party, known as the mediator. The mediator should be a family law attorney or a very experienced mediator handling family law issues.  Mediators do not provide legal advice, despite being an lawyer.  Instead, they are there to help you reach a settlement. The mediator does not make any decisions for you rather they facilitate conversations and encourage agreements.

Private and court-ordered mediations are helpful because couples can voice opinions and reach a settlement without having to go to court.

Benefits of Mediation

  • Lower Divorce Costs: The biggest advantage is that mediation is by far the cheapest option for divorce settlements versus litigation. You still pay your attorney’s fees, but then you and your spouse share the cost of the mediator, which is typically billed at an hourly rate.
  • Higher Chance of Settlement: Mediation is quite successful, even in complex divorce cases. With a mediator, you have a higher chance that you and your spouse will reach an agreement that you both can accept.
  • Following the Plan: When couples agree to mediation, they are more likely to follow through with that agreement; therefore, it simplifies not only the divorce but the proceedings after a divorce. When the court makes a ruling, one spouse may feel that their judgment is unfair and refuse to adhere to the agreement. This results in added courtroom costs and dealing with the contempt of court hearings.

When Does Mediation Work?

Mediation only works when both parties are willing to sit down and negotiate. You both have your own lawyers, but if you cannot agree or negotiate, mediation will not work.  Couples must work together in mediation, whether from separate rooms or the same conference room; therefore, one spouse cannot feel influenced by another.

Keep in Mind:

If you attend mediation and do not settle, you’ll have spent a lot of money to sit down with your lawyer and try to work things out to no avail.  This means that mediation added to the cost of your litigation, not reducing it.  Most cases settle at mediation.  That said those that do not have added roughly $3,000 to the cost of the divorce.  

Arbitration

Arbitration is binding, and it removes your ability to be part of the decision-making team. While you have a laid-back setting and can discuss freely with the third party, the person overseeing the case decides on your behalf, and that decision is final.

Arbitration requires that each party meet with an arbitrator without their lawyer. You will talk about your goals and priorities in the divorce, and the decision is left in the hands of the arbitrator.  Keep in mind though that an Arbitrator is paid by the hour as well and the costs may be higher than mediation as most arbitrators charge their full hourly attorney rate.

You have no choice once the decision is made, and you must follow that settlement.

Benefits of Arbitration

  • No Courtroom Litigation Necessary: With arbitration, you have a party making decisions, but you do not have the costs or hassles of going to family court for that power. The neutral third party assumes control and ensures all choices are based on fact and logic.
  • Efficiency:  As most Arbitrators are practicing attorneys, it is often more efficient to have an Arbitrator hear a case than a court.  Court calendars are often booked several months out whereas an arbitrator can get you in more quickly.  A mediator also has a shorter window to issue a ruling.  The court has ninety days whereas an arbitrator only has thirty.
  • Trial Rules:  The parties can elect which rules of evidence and which trial rules will apply to arbitration, essentially delineating the Arbitrator’s powers.

When Does Arbitration Make Sense?

Arbitration works when mediation is not an option for you and your spouse. It is less expensive than full blown litigation and quicker, so if you want to save money on your divorce, it is a viable option. However, you must be willing to accept the prescribed resolution by this third party.

Collaborative Divorce

Indiana only recently started using collaborative divorce, and many lawyers still do not offer collaborative divorce options to their clients. As a new kid on the block of alternative dispute resolutions, collaborative divorces have specific uses and issues.

A collaborative divorce is risky because if you or your spouse decide that the collaborative process is not working, you must hire new attorneys and start the process over. This is because, at the commencement of the process, you and your lawyer, as well as your spouse’s side, must sign an agreement to collaborate. In that agreement, it states that your attorney must withdraw if you are no longer able to collaborate.

Collaborative divorces can be costly when couples cannot reach a solution and must hire new attorneys, pay for those lawyers to catch up on the case, then go through traditional litigation.

Collaborative divorce is only best when you and your spouse are in an amicable divorce situation, and you both are more than willing to work together for a settlement.  That said, if you’re that collaborative, you may do better by going through mediation with your attorneys.

Consult with a Family Law Attorney for Your Alternative Dispute Resolution Options

If you would like to explore your alternative resolutions for a divorce, contact a lawyer from Eskew Law. Our family attorneys will review your case and help you find the right alternative dispute resolution based on your unique situation.

Schedule a consultation today at 317-974-0177 or contact us online to get started.

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