Divorces tend to be extremely costly and consume an exorbitant amount of time for the parties and legal professionals involved. Time equates to money when matters are litigated. In order to save time and money during the divorce process, a litigant can utilize various alternate dispute resolution methods, which include but are not limited to, mediation, arbitration, or collaborative law. Many times the parties will attempt one of the above alternate dispute resolution methods before filing a Complaint for Divorce, although they have the right to engage in mediation and arbitration after a Complaint for Divorce is filed. In doing so, the parties do not have to incur the fee for filing the Complaint for Divorce nor are they required to comply with court deadlines regarding filing Case Information Statements or serving and/or answering discovery, all of which is costly and time consuming.
Mediation is a way divorcing parties can resolve their differences utilizing a trained, impartial third party, who is most often a lawyer. Mediators do not make binding determinations but rather assist the parties in coming to a resolution without court intervention, if they so choose. People can attend mediation before or after a Complaint for Divorce is filed. The litigants can attend mediation with or without lawyers. Ultimately, if mediation is successful, the mediator drafts a Memorandum of Understanding, which a lawyer can transcribe into a Property Settlement Agreement. Thereafter, the parties can file a Complaint for Divorce, if it has not been filed already, and obtain a Judgment of Divorce shortly thereafter.
Arbitration, on the other hand, is a proceeding whereby an impartial third party or parties, are presented with evidence and actually decide the case. The parties agree, prior to the arbitration, whether the arbitrator(s) decision will be binding or if they have the right to appeal the final determination. Arbitrators make decisions not recommendations.
Collaborative law is new and upcoming in New Jersey. It is an alternate dispute resolution method that allows the parties to retain their own attorneys, who work together with joint experts, to resolve their matter without court intervention. It is a “team approach” whereby the parties jointly retain a team of experts to help resolve their matter with a commitment not to litigate. If it is not successful, and a Complaint for Divorce is filed, the parties are required to retain new attorneys and experts.
Alternate dispute resolution methods are a less costly, alternative approach to litigating your matter in the court system. Each approach gives the litigants more control over the outcome of their matter. Many times a court case can take over two years before a trial date is set. During that lengthy time period the parties are paying their attorneys, experts, etc. tens of thousands of dollars to fund the litigation. If the parties decide not to go to court and attempt to resolve their matter amicably it is undisputed that it saves them a significant amount of time and money.
Elizabeth M. Vinhal is formally Of Counsel at Eihorn, Harris, Ascher, Barbarito & Frost P.C since 2003. Her practice areas are Family Law, Divorce and Domestic Relations. She is a member of the Matrimonial Law department.