Alternative Dispute Resolution FAQ
What is Alternative Dispute Resolution (ADR)?
Alternative Dispute Resolution, also known as ADR, is a way for settling disputes without litigation. Mediation, negotiation, collaborative law, and arbitration are types of ADR. ADR procedures are usually less costly and faster.
What is Negotiation?
Negotiation is a discussion between two or more people in a dispute with the goal of reaching an agreement.
What is Mediation?
Mediation is a procedure in which parties discuss their dispute with the assistance of a neutral third-party who assist them to reach a settlement.
What is Collaborative law?
Collaborative law, also known as collaborative practice, is a legal process where couples, pursuing a separation or divorce, engage a team of collaboratively trained lawyers, mental health and financial professionals to assist them in reaching a settlement regarding issues related to their separation and divorce. Collaborative law is a voluntary process and is initiated when a couple signs a collaborative participation agreement binding themselves to the collaborative process and disqualifying their lawyers right to represent them in any future divorce related litigation.
What are the benefits of negotiation, mediation and collaborative law over litigation?
In negotiation, mediation, and collaborative law, the parties to a dispute have a high-level of control over the process and outcome of the dispute. These alternative dispute resolution processes are voluntary, offer parties a high level of privacy, and can be substantially less expensive than litigation.
Are the agreements reached during Alternative Dispute Resolution binding?
They can be. If you and the other party reach an agreement that resolves any or all issues, once signed, the agreement becomes an enforceable contract and can ultimately be incorporated into a court order.
Can I call the mediator as a witness in my divorce case?
No. Mediation is a confidential process. This mean that mediators may not be called to testify to things said during the mediation by either party.
How do I decide which process is best for my separation and divorce?
The place to start is to think about how well you and the other party communicate, what is the level of conflict between you, how complex are the issues, and how much information do you have. If you and the other party communicate well, there is a low level of conflict, the issues are not complex, and you have adequate information to make informed decisions; party to party negotiations may be a good place to start. As you move along a continuum of reduced ability to communicate, higher level of conflict, increasing complexity of the issues, and decreased access to necessary information; seeking the assistance of a mediator and/or attorney may be a necessary choice. Bottom line-when in doubt seek a consultation from an attorney.
If I start with one dispute resolution process, can I use another?
Yes. The best plan would be to start with the least expensive process and then add resources to your dispute resolution plan as they are needed. Fortunately, or unfortunately, you can always go to court.
Why is litigation so expensive in a family law case?
Litigation in any civil action can be expensive because of the adversarial nature of the process and the need for each side to discover information from the other side in order to prepare a client’s case for court. In a nutshell, each side is trying to hide information from the other side in order to gain an advantage, and the other side is trying to discovery that information. In a family law case, the adversarial process is then increasingly charged by the emotions associated with the break-up of a family—anger, hurt, jealousy, fear. It is not uncommon for family law litigation to be driven by emotions rather than rationale decision making, making it much more expensive.
What is a Marital Settlement Agreement (a/k/a Property Settlement Agreement)?
A Marital or Property Settlement Agreement is a contract between two spouses that addresses custody of children, child support, spousal support and division of marital assets. Once a Marital Settlement Agreement is signed, the parties will more than likely be bound to all provisions, except those related to children. As such, it is advisable that each party review any proposed agreement with an attorney prior to signing it.
Can I complete the divorce process without using an attorney?
Yes, but it may not be advisable. The result of any alternative divorce resolution process in a family law matter will be a Marital Settlement Agreement. Once signed parties are bound by the contents of those agreements so it is important that each party review any proposed Marital Settlement Agreement with an attorney before signing.
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