Going through a divorce requires making difficult decisions that will impact the rest of your life. One of the first items you and your spouse must decide upon is the type of dispute resolution that makes the most sense in your unique set of circumstances. Like many people experiencing divorce for the first time, you may not be aware of the options available for resolving your divorce. To help you make an educated decision, here’s an overview explaining the options at your disposal.
Some divorcing couples enlist an independent third party, called a mediator, to help them reach a divorce settlement. Both private and court-ordered mediation are designed to encourage couples to voice their opinions and reach a balanced settlement in a neutral environment.
The two main benefits of mediation are lower divorce costs and a higher chance of reaching a balanced agreement that is acceptable to both parties. When divorcing parties reach a resolution together through mediation, they are more likely to adhere to the agreement, which simplifies life during and after divorce. However, in order to remain neutral, mediators are unable to provide legal advice or recommendations to either party.
In mediation, both parties retain a lawyer to read over the mediated agreement and offer advice before the parties sign it. Even if the mediator is also a lawyer, both parties should still have independent legal advice to make sure they fully understand the legal ramifications of the agreement they’ve created.
If you would like to bypass a lengthy court case and are willing to negotiate fairly with your spouse, mediation may be a great choice for settling your divorce. On the other hand, mediation is usually not recommended in cases where there is a history of abuse or mental illness, if the parties are poor communicators, or if there is any question that the best interests of the children are not being
protected. Additionally, mediation is not advisable for couples hoping to rely on a third party to make final decisions for them.
Unlike mediation, arbitration removes the task of decision-making from the two divorcing parties and hands it over to a third-party individual. The process of arbitration requires both spouses to meet with the arbitrator without their lawyers’ present, describe their goals and priorities for the divorce settlement, and leave the final decision to the discretion of the arbitrator.
In most jurisdictions, the decision reached by an arbitrator is final and binding, meaning the couple has no choice but to follow whatever settlement is decided for them. The benefit of arbitration is that a neutral third party assumes control, ensuring that important choices related to the divorce are founded on fact and logic rather than based on the emotionally charged perspectives of the divorcees. Arbitration is also less expensive than litigation through the court system.
If you would prefer to retain the power to renegotiate and potentially challenge the divorce agreement, arbitration is not the best option for you. Nevertheless, many couples who are unable to agree on important issues choose arbitration as a means to overcome their stalemate. As long as you are comfortable accepting the resolutions prescribed by an unbiased third party, arbitration may be a viable approach to divorce dispute-resolution for you and your spouse.
The newest dispute-resolution option for divorcing couples, collaborative divorce often engages an entire team of professionals to help resolve your case. Experts in the fields of law, finance, mental health, and, when necessary, child advocacy come together to help families through the challenging divorce process. This team approach to divorce allows both parties to retain their own specially-trained lawyer to act as coaches; all other professionals are shared by the divorcing couple, which helps keeps costs down.
The lawyers on both sides aim to help their clients reach an equitable settlement. Both lawyers and the parties sign an agreement stating that they will settle without going to court; if the parties fail to reach an agreement, the entire collaborative team must resign, and the parties must start the process over from square-one with new litigation lawyers.
A variation on this theme is collaborative law, in which you hire collaborative lawyers without a full team to support you through the process.
Collaborative divorce can be a very effective approach to divorce, since there are professionals available to handle the legal, financial, emotional, and children’s issues that will inevitably arise during the process. The diverse perspectives provided by the collaborative team members facilitate a fair and respectful settlement process.
You should consider the collaborative approach to divorce if both of you are willing and able to negotiate in good faith, and spend the time and energy necessary to reach a mutually-agreeable settlement. However, collaborative divorce will not work well for couples who are unwilling to compromise, communicate, and commit to reaching a resolution. If one of you is not actually negotiating in good faith, or not interested in reaching agreement, the process will likely fail.
Although only about 5% of divorces go to court, you should understand the process if you are not good candidates for any of the Alternative Dispute Resolution (ADR) models described above – or if you fail to reach agreement during ADR. In divorce cases that go to trial, both sides have a chance to make their case (either as a pro se litigant or one who is represented by a lawyer); instead of crafting their own agreement, they rely on the knowledge and discretion of a judge to determine their future.
Litigation fees can be very expensive, especially in difficult, drawn-out divorce cases. Another unfavourable aspect of litigation is that couples who are unable to reach an agreement without the intervention of the court often struggle with the judgement delivered to them. Divorcing parties are more likely to honor a divorce settlement that they have contributed towards rather than the orders mandated by a judge.
If you would prefer to retain control over the outcome of your divorce, litigation is not an ideal method for resolving your dispute. On the other hand, if you are comfortable entrusting a judge with your divorce outcome or if other approaches to divorce dispute-resolution have been unsuccessful, litigation may be necessary.
Pro Se/In Propria Persona
At the other end of the spectrum from litigation is Pro Se representation. Sometimes called “In Propria Persona” or “Pro Per” (from the Latin meaning “in one’s own person”), in this approach to divorce, either one or both parties choose not to hire a lawyer to represent them. The Latin term Pro Se translates as “on one’s own behalf”, meaning that the litigant is acting as his/her own attorney in a lawsuit – including self-representation in court. A pro se party is responsible for properly completing all relevant legal paperwork, remembering important court dates, doing his/her own research and discovery, and assuming any other responsibilities otherwise handled by a divorce lawyer.
Many people who opt for self-representation do so for the financial benefit of avoiding lawyer fees and to maintain complete control of their case; however, pro se parties face risks not shared by their represented peers. In addition to the extra stress of representing yourself at court appearances, you may struggle to understand the tax and legal implications of a property settlement, and may also fail to grasp the long-term consequences of the support agreement you’re negotiating. Pensions and retirement accounts are high-value marital assets, some of which have complex rules about how – or even if – they can be divided requiring expert advice and assistance.
If your divorce is straightforward, uncontested, you have no children or significant assets, and you are capable of doing thorough research and court preparation without assistance, pro se representation may be an appropriate option for you. However, if your divorce involves child custody or support, spousal support, significant property or pension division, then pro se is probably not the right choice for you.