Separation and Divorce Guidebook
Alternatives To Court in a Separation or Divorce
Litigation -- going to court with lawyers -- is the method of dispute resolution most familiar to most people. If you've ever watched "Divorce Court" or "Perry Mason" on television, these are poor examples of litigation.
But this does not mean that everyone's needs are best served by the court system. Although courts define individual rights and obligations according to precise rules and procedures, courts can be costly, inefficient, and slow, which may mean that the very question that needs to be resolved ultimately may not be.
For those who have or need to have continuing relationships despite their differences such as husbands and wives who can't live together but, at the same time, must take active roles in raising and supporting their children. The court system may not be the best way to resolve a dispute regarding a separation or divorce. These people might want to consider alternatives to court that help keep the necessary parts of their relationship intact.
In contrast to courts that are public, expensive, and comparatively slow, alternate dispute resolution techniques are private and can be faster and less expensive in time, money, and emotional stress. Through what is known as "Trial by Contract", a husband and wife can agree upon a neutral third party to either mediate the dispute or arbitrate the issues according to relaxed rules and procedures.
Mediation is a nonbinding way in which an impartial facilitator who has no coercive powers can begin an exchange and suggest solutions about your marriage problem. However, mediators can not give you divorce advice.
Arbitration, on the other hand, places a third party who can be an expert in the field in a decision making position. This decision can be either binding or nonbinding, depending on the wishes of the parties. After arguments and abbreviated evidence in a more relaxed, private proceeding, a decision is made.
Because the entire procedure can be governed by the desires of those who utilize it, the husband and wife can agree that if the decision of the arbitrator is not challenged by either party within 30 days, the decision is final. Otherwise, the parties can go to court and no one is bound by the arbitration.
If a financial question is presented say the amount of alimony to be paid the husband and wife can agree to a "high low" arbitration that works like this: Unknown to the arbitrator, the husband and wife agree that regardless of the decision, the high and low limits are set. For example, the husband will pay not less than $250 per month and not more than $500 per month. If the award is less than $250, the husband pays $250. If the award is above $500, the husband pays $500. And if the award is in between, the husband pays the amount awarded.
Methods of alternative dispute resolution are not substitutes for litigation...only a different way to resolve disputes. Mediation, arbitration, minitrials, and a combination of mediation and arbitration (called "med arb") are a few suggestions. You should always discuss options in which you can resolve these difficult disputes with your lawyer, and an efficient, private, and less expensive method certainly deserves discussion.