Why Choose Alternative Dispute Resolution (ADR) If You are Divorcing

Alternative Dispute Resolution (ADR) is a way to settle disputes outside of court. It can be cheaper and faster than traditional litigation, and it often preserves relationships.

It goes without saying that divorces are messy. Unfortunately, this is especially true if things get heated and you have to go to court. While litigation does not occur in every divorce, it may be a necessary step in your divorce case. And it can be both emotionally and financially draining– for you and your spouse.

However, the good news is that (if litigation isn’t necessary) there are other ways to get a divorce that are far less costly and mentally exhausting. One way to do this is by using alternative dispute resolution (ADR) proceedings. This article is a good starting point to determine if ADR is right for you. But as always, we encourage you to speak with an attorney first to evaluate your options based on your individual circumstances and needs before you jump and commit to anything.

What is Alternative Dispute Resolution (ADR)?

ADR is an out-of-court procedure that is designed to resolve disputes between parties in a number of situations–including divorce. In cases of divorce, ADR proceedings help facilitate a voluntary divorce settlement–allowing the parties to agree on their own to the terms and conditions of the divorce.

While there are a few different types of ADR processes, the two most commonly used in divorce cases are mediation and arbitration. Mediation is when an impartial third party (the “mediator”) helps the divorcing couple identify the issues of the divorce and reach a mutually acceptable resolution of those issues. The mediation takes place in a neutral setting and can be done with or without an attorney present. One important characteristic of mediation is that the mediator is not permitted to offer legal advice or make any decisions concerning the outcome of the divorce. Rather, the mediator is there to help the parties communicate–so that they can try to reach an agreement themselves. Some common issues that may be discussed during the mediation include:

• Property division
• Child custody and parenting time
• Child support
• Disposition of marital residence

Arbitration is when an impartial third party (the “arbitrator”) is selected by the divorcing couple to hear the arguments and consider the evidence from each party. Unlike mediation, the arbitrator is authorized to make decisions on divorce issues. However, the parties will decide prior to the arbitration whether or not they want the arbitrator’s decisions to be binding.

With binding arbitration, the parties waive their right to a trial and agree that the arbitrator’s decisions are final. Nonbinding arbitration, on the other hand, means that the parties may request a trial at the end of the arbitration proceeding if they are not satisfied with the arbitrator’s decisions.

The Benefits of Alternative Dispute Resolution (ADR)

There are many benefits to using Alternative Dispute Resolution (ADR) (as opposed to litigation). Some of these benefits include:

1. Speeding up the marriage dissolution process. Divorce cases that go to trial can take years to resolve. This is because it takes time to set court dates, gather evidence, prepare for trial, etc. However, since ADR proceedings are handled outside of the courtroom, they can and most likely will be settled within a few months.
2. Reducing the costs and expenses of divorce. Most of the time, the cost of litigation is very high.  According to research conducted by Martindale-Nolo, attorney fees for divorce cases that involve a trial averaged US $17,700. In addition to attorney fees, parties will also have to pay for other litigation expenses, including court costs and expert witness fees. Thus, ADR proceedings will save you a huge expense–just by staying out of the courtroom.
3. Lowering the tensions and emotions between the parties. In trial cases, there is usually always a winning and losing party. This can result in greater hostility and higher tensions between the divorcing couple. This can also have long-lasting impact on the children. ADR helps to reduce these potential negative effects by allowing the parties to make their own decisions concerning their divorce–which will hopefully end in a win-win situation.
4. Increasing the parties’ control over the divorce process. Most people like to feel a sense of control over their lives– especially when it comes to making decisions that have a direct impact on their future. One of the drawbacks of going to trial (if must go there) is that, essentially, you’re leaving your fate in the hands of a judge (or jury) who is deciding your case for you.

Alternative Dispute Resolution (ADR) at least gives you some control over the resolution process, which can help the parties be more accepting of the outcome.

How do I know if Alternative Dispute Resolution (ADR) is right for me?

Before making any kind of decision about your divorce, you should always start with researching your state’s current divorce laws. This is because some states may actually require some form of ADR before you can proceed with litigation. However, if your state doesn’t have an ADR pre-requisite for divorce, then you have a few options to consider–one being ADR. ADR might be the right approach for you if you and your spouse can:

• Agree on key issues
• Work together (amicably) to resolve key issues. (Check out “What is an Amicable Divorce? And 5 Ways to Ensure One.”) 
• Be honest and transparent with each other

If this sounds like something you and your spouse can do, then ADR might be in your best interest. However, if your marital relationship has a history of dishonesty or toxicity, or if you and your spouse cannot agree on key issues (like marital property division and child custody) then it might be wise to consider other options—such as a more traditional approach. To learn more about other approaches/models to divorce, read “The 4 Types of Divorce and How to Know Which One’s Right for You.”

Ultimately, it is important to be aware of the fact that you don’t always have to go to court to effectively end your marriage. There are alternatives (like ADR) that will help achieve the same result — for a fraction of the cost and time.

In addition to seeking out legal advice, you should be asking yourself questions to help you figure out which course of action will be best suited for your situation. Are you on good terms with your Soon-to-Be-Ex? Do you think it’s possible to work together and negotiate a fair agreement? Do you have any serious disagreements over who gets to keep the house? Or where your children will spend the holidays? The answers to these kinds of questions will be critical in determining whether litigation is necessary or if your divorce can be resolved by some other legal means—like an ADR proceeding.

NOTES

Jayne Cleary is a second-year law student in New York who is committed to helping educate and improve the families in her community.

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 *We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”