by James Korman, Shareholder, Bean, Kinney & Korman, P.C.
Not every divorce has to be a nuclear war. Going to court is always an
option. But it is expensive, stressful, slow and at the end a judge who doesn’t
know you or your spouse is going to make a decision that can affect the rest of
your life, not to mention your business and your fortune. Should court be a
last resort rather than a first choice? Is
there an alternative? Absolutely.
Dispute Resolution (“ADR”) is the trial of the
new millennium. Nowadays, I have ADR in more cases than not.
What is alternative dispute resolution? As the name suggests, it is an
alternative to going to court to resolve your issues. ADR is often the first
choice to resolve disputes related to a divorce. The most common types of ADR
are mediation, neutral case evaluation, collaboration and arbitration.
In most cases, these are voluntary. Both parties have to agree to participate.
Case Evaluation (“NCE”)
An experienced and impartial professional, usually a divorce lawyer or
a judge, looks at a summary of the facts and issues in the case with supporting
documents. The summaries are prepared by
the parties’ lawyers. In addition, each party usually gives the Neutral Case
Evaluator any settlement offers that may have already been shared with the
other side, and as yet undisclosed confidential settlement proposals.
The NCE can then offer his/her opinions about how realistic each
party’s positions are. Sometimes parties do not believe what their own lawyer
is telling them. But when an experienced neutral person tells them their
position is unrealistic, there should be a better chance to move closer to
Mediation is the most frequently employed ADR method in divorce cases. The
parties hire a mediator, although some courts will provide mediators without
charge. The mediator is generally an experienced judge or lawyer. Occasionally
parties might employ a mental health professional to mediate issues involving
custody of children and other parenting issues. The mediator doesn’t decide the
issues. His/her job is to get the parties to “yes”. Often, the mediator will
evaluate each party’s respective positions on various issues. Why else would you employ a mediator who is an
It is customary to give the mediator an advance statement of each
party’s position and to designate the issues that have to be mediated. You can mediate with or without counsel
On the day selected for the mediation, the mediator, the parties and
their attorneys assemble. Usually, the mediator will shuttle back and forth
between the two parties and see if the gap between their respective positions
can be bridged. There can be no settlement of any issue unless both parties
agree to terms on that issue.
It is advisable, to say the least, to memorialize in writing any
agreements that are reached at mediation, and do it then and there. Delay can
undo everything that everyone worked so hard to resolve.
Before signing an agreement, I always say to my clients, “You have to
be okay with this deal five days from now, five months from now and five years
The parties sign contracts with lawyers who are certified in
Collaborative Practice. The contract commits the lawyers to work with the
parties to settle the case. If the case does not settle, the collaborative
lawyers will not represent you in court. You will each have to retain another
lawyer to handle that. At a collaborative session, the parties and their
counsel work on settling the case with the assistance of financial advisors, mental
health professionals, accountants or whatever experts might be able to help. At
collaborative sessions the advice attorneys give, which you might expect to be
confidential, is openly shared with all present.
Again, the goal is for the parties to reach a written agreement
resolving their issues.
An arbitrator is in essence a judge you pay. So why wouldn’t you go to
trial and use a judge the state pays? With arbitration you can choose your
judge, you can choose your schedule and the proceeding is private. While
arbitration is not a court trial, it is not a negotiation. Formal rules of
evidence may be more relaxed, but it is essentially a trial. Both sides offer
their testimony and evidence, both sides argue their case and the arbitrator
decides the case.
With ADR, you get control over the schedule, privacy, input and
flexibility. If you go to trial, the judge makes his/her decision, and that’s
it. If you don’t like it, all you can do
is appeal. More expense, more delay, more stress.
With ADR, if someone makes a settlement proposal, you can suggest
another approach or fine tune certain terms.
For example, one party can offer to give up the equity in the house in
exchange for his/her interest in the business. By contrast, a trial judge is
likely to order the house sold and the proceeds divided. Neither party will have the house.
doesn’t resolve everything, you can still resort to the courts, if you have to.
Ultimately, how you choose to proceed is up to you.