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Alternatives to Divorce Litigation: Mediation, Arbitration, Collaborative Divorce and Four-Way Conferences

By Maria P. Imbalzano

Divorce is difficult; emotionally, physically and financially.   The issues in divorce lend themselves to intense feelings, which even on a good day, can interfere with the process.  Yet, many divorce cases can be resolved in a fair and equitable manner without the need to battle it out to the bitter end through the court system. 
   

Currently, our family court system is over-burdened.  There are not enough judges to hear the thousands of new cases that are filed in our State every year.  Therefore, in order to move your case along, you may wish to consider alternatives to the litigation process, or avenues you can access to supplement the process, thereby making the system work better for you.
   

Mediation.  Mediation is a process in which two parties (with or without lawyers) meet with a third party, the facilitator or mediator, to help resolve disputes.  This meeting takes place in an informal setting, where those involved frame the issues and discuss alternatives for settlement, all with the help of the mediator.  The issues are discussed, one by one, until an agreement is reached.  The mediator does not determine the outcome; the parties do.  When all issues are resolved, the mediator drafts a Memorandum of Understanding which the parties take to their attorneys for review.  The intent of the process is to reach agreements that will be placed into a formal Interspousal Agreement signed by both parties.   
   

Arbitration.   Different from mediation, arbitration is similar to a trial; however, it is a less formal process that takes place before an arbitrator, not a judge, in a conference room as opposed to a courtroom.  Many times the arbitrator chosen by the parties is a retired judge or attorney who has expertise in the area of family law.  The arbitrator listens to the testimony of each party and their witnesses through the questioning of the attorneys.  Documentation is also presented  to bolster each party's position.  Once each side has presented their case, the arbitrator makes a decision.  While similar to a trial, the key differences are: (1) the process is less formal and more flexible; (2) the parties choose the arbitrator, whereas you cannot choose your judge; (3) the parties, along with the arbitrator and attorneys set the schedule, so that you're not beholden to the limited time schedule of the court; and (4) a decision will be made promptly.   
   

Collaborative Divorce.   This is a fairly new approach to divorce, wherein, the parties and their attorneys sign a Participation Agreement committing to resolve all divorce issues through negotiation and not litigation.  The attorneys assist their clients in resolving conflicts through cooperative techniques rather than adversarial strategies.  This is accomplished through a series of conferences in which the parties work together toward a negotiated settlement.  In the event the process is not successful, the attorneys must withdraw from the representation of their respective clients, and the parties must hire new counsel before proceeding with litigation.

Four-Way Conferences.  While the above methods are less formal than trial, an even more informal method for resolving differences is the four way conference.  This generally takes place during the litigation process, but before you are too deeply into case.  The parties and their
attorneys meet to discuss the outstanding issues in the case with a view towards solving, or at least narrowing, the issues before going to court.   

All issues in a divorce case can be resolved by using any of the above methods; however, both parties must agree to engage in any one of these forms of alternate dispute resolution before proceeding in this manner.

Full post as published by New Jersey Law Blog on February 01, 2010 (boomark / email).