Settling your divorce through adr

     It’s officially been over a year since the New Jersey Courts have transitioned to virtual proceedings. After months of growing pains, court calendars were scheduled again and virtual hearings became common practice. Unfortunately, many court calendars are still backlogged and running much slower than they did before. This can be bad news for divorcing couples as some judges’ calendars are so backlogged that they are scheduling divorce trials months and months in the future.

     It’s commonly known that most divorces settle. The reason for this is that parties usually want control over the terms of their divorce, especially when there are children involved. There are a few different ways to settle a divorce through Alternative Dispute Resolution before it ever gets to trial.

1. Negotiation. Negotiation involves the parties settling their divorce on their own terms. The parties themselves, or with their attorneys, discuss each aspect of the divorce (including child custody and support, alimony, equitable distribution, etc.) and negotiate a Settlement Agreement which will serve as the terms of their divorce. This means of settlement gives the parties the most autonomy over the terms of their divorce present in their settlement agreement. The settlement agreement becomes a binding contract between the parties upon execution by both parties and then becomes a court order upon execution by the Judge. Negotiation between the parties, usually with the help of their attorneys, without any intervention from the Court or third parties, usually only works when the parties are willing to negotiate and resolve all issues through collaborative negotiation.
2. Collaborative Divorce. When the parties decide to pursue a collaborative divorce, they employ collaborative attorneys and a team of certain professionals such as financial advisors or child custody specialists in order to reach an agreement. The parties sign an agreement that they will not pursue litigation. If either party decides that they would like to pursue litigation, the collaboration ends and the attorneys are then fired and cannot be used in litigation. It is then up to the parties as to how they would like to proceed. Collaborative divorce is best suited for parties that are on a relatively even playing field, emotionally and financially since a judge is not present during the collaborative process, there are very few protections offered by this process. Collaborative divorces are only suited for parties that are very amicable and willing to openly communicate their expectations and discovery.
3. Mediation.  Mediation is essentially a settlement conference between the parties and a neutral third party. The parties agree to attend mediation or they may be ordered to attend mediation by the court. The parties and their attorneys, if they wish, attend a mediation session with a qualified mediator to contemplate creative solutions in order to reach a Settlement Agreement. The mediator’s suggestions and recommendations are not binding on the parties and, while guided by applicable law, are not as stringently governed by law as a judge’s decision would be
   
4. Court Ordered Settlement Panels.  Before proceeding to trial, the Court may direct the parties to settle the Economic Issues of the case at an Early Settlement Panel. The panel usually consists of two or three Matrimonial Lawyers who volunteer their time and give their recommendations as to how the parties should settle the case or what they could expect in litigation. The panelist’s recommendations are not binding on the parties.
   
5. Arbitration.  If the parties agree to arbitration, they will pick an arbitrator (usually a qualified attorney or retired judge) and decide whether or not they will be bound to the arbitrator’s decision. Arbitration is usually conducted like a pseudo-trail complete with testimony and rules of evidence. Unlike mediation, the parties do not decide how to settle the matter, the arbitrator does, and if the parties agreed to be bound by that decision, the arbitrator’s decision becomes the terms of the divorce. This option gives the parties the lease amount of control over the divorce, but is often less expensive than trial.

     There are many benefits to settling a divorce through ADR, especially right now. First, as previously mentioned, the parties maintain varying levels of control over the terms of their divorce. Second, use of one of the above methods of ADR can significantly decrease the cost of your divorce. Divorces are notoriously expensive – there are so many costs associated with trial that you can avoid should you choose to settle. Third, Courts are governed by case law, statute, court rules and the rules of evidence. If you decide to settle your case there are, generally, more creative solutions that are not strictly bound by Rules and evidence. Fourth, divorce litigation can take a very long time, especially amidst the pandemic. If a divorce is particularly contentious or complicated, there can be weeks of trial dates, whenever the Court can fit them into the calendar. Finally, ADR will almost certainly avoid the high level of conflict that comes with a trial. Divorces are emotionally taxing, but if you are willing to come to the table and compromise it can be beneficial to the parties’ relationship moving forward.

     Obviously, ADR is not the best choice in every case, but it’s surprising how many contentious divorces can settle if the parties have the right attorneys and are willing to make some compromises. If the parties do not choose to move forward through one of the above-mentioned processes, the court would then schedule trial dates and the parties would move forward with traditional litigation. If the parties are successful in their attempts to settle the case through ADR, they then submit their agreement or the arbitrator’s decision to the Court and appear at an Uncontested Divorce Hearing where the judge signs the Judgment of Divorce.

     If you are contemplating divorce and would like to speak to an attorney, visit HunnellLaw.com/contact to determine whether ADR may be applicable to your circumstances.

Author: Caitlin Holland, Esquire