Types of Dispute Resolution for a Divorce
Ken Graeber is an experienced family law practitioner, with special training in collaborative practice. He believes that a cooperative, reasoned settlement is always better and healthier for his clients than a costly, adversarial trial. However, each case must be examined independently to determine the best way to proceed. Sometimes this means litigation is inevitable – in which case Ken will fight to achieve a proper result.
When considering divorce, clients can choose from three dispute resolution methods to achieve a settlement:
Collaborative divorce is an option that allows couples to resolve their disputes respectfully and privately as opposed to a public hearing. It is a cooperative, solutions-based approach to ending a relationship. It differs from traditional litigation by allowing control of the process to remain with the spouses, instead of a judge. Because clients agree not to proceed to court, the process is less adversarial. By enhancing communication skills throughout this process, a couple also attains a better foundation for a healthy relationship after the divorce.
Collaborative Practice is based on three principles:
- The parties and their attorneys pledge in writing not to go to court.
- Both spouses are honest in their exchange of information.
- Each solution takes into account the needs of both spouses and their children.
The Collaborative Process
The goal of collaborative practice is to achieve a mutually acceptable, negotiated settlement between two parties without the threat of court proceedings hanging over the parties. Each party retains their own collaborative attorney who gathers information, provides guidance on rights, responsibilities and options, and participates in the negotiation of a settlement.
A collaborative divorce is an excellent choice when each party prefers to have his or her own independent attorney guide them through the legal process and chooses counsel that is not hostile. If the participants ultimately are unable to agree on a divorce settlement, the collaborative attorneys withdraw, and the parties transition to litigation attorneys who take the matter to court.
The Collaborative Team
Collaborative attorneys have specialized training in areas such as dispute resolution. Sometimes, they work with other professionals to help to facilitate an agreement. Other professionals that may be a part of your team are:
- Child Specialists – to create a parenting plan that works best for the children
- Financial Specialists – to gather, analyze and interpret financial information
- Valuation Consultants – to provide neutral valuations of assets, such as real estate, businesses or retirement accounts and pensions
- Vocational Consultants – to provide training, education and employment information
- Divorce Coach – to assist with communications and difficult emotions
These professionals are selected by you and your spouse and they are neutral advisors. As a result, they are not intended, and may not operate as expert witnesses in litigation, but merely as advisors to the entire team.
Benefits Of Collaborative Divorce
- Children experience less trauma
- Spouses retain control over the proceedings
- Proceedings are confidential
- Solutions are mutually beneficial
- A positive tone is set for smoother post-divorce communications
Mediation is another voluntary process by which you and your spouse make joint decisions on a settlement. A singular professional mediator facilitates discussions but does not give advice or make decisions. The mediator may, however, make suggestions as to how the various disputed issues can be resolved.
The Mediation Process
Both parties meet with the mediator to identify issues, exchange information, and work towards an agreement. The parties may each choose to retain their own lawyer and other professionals as needed to answer questions in advocacy for their respective client. In complex divorces (those cases characterized by a large amount of or high value assets, special needs children, business investments, etc.) each party may choose to have his or her attorney at the mediation session. A skilled mediator will suggest that the parties hire attorneys to review their mediated decisions after a settlement has been reached, but before filing it with the court, to gain assurance that their legal rights are upheld.
Mediation can be used to handle different types of family law issues, such as:
- Divorce and legal separation
- Child custody, placement and access plans
- Valuation and division of property
- Spousal and child support
- Pre-nuptial and post-nuptial agreements
Benefits Of Mediation
- You set your own pace
- You do not have to go to court
- The mediation process is confidential
- Oftentimes less expensive
In litigation, each individual hires an attorney to represent her or him in court regarding matters they cannot resolve on their own. These issues typically include the valuation and division of assets, a determination of the division of liabilities, custody of children, support, and attorney’s fees. While the ideal goal is to resolve the dispute amicably, court intervention is pursued if the parties cannot reach an agreement.
The Litigation Process
Attorneys begin by gathering as much information and documentation as possible from the client. After the client has presented all available documentation to his or her attorney, the attorney then makes formal and/or informal requests of the other attorney for documentation to supplement what has been obtained. Business, real estate and pension evaluations may be necessary. Copies of tax returns, credit card statements, bank statements and monthly bills are provided so that each party can present an accurate financial picture of income, expenses, assets and debt.
Often, parties can reach an agreement regarding the division of their marital estate based upon these disclosures. If additional information is required, or if one party believes the other is withholding information, then subpoenas may be served upon businesses, employers or others to generate such supporting information. Depositions, which are transcribed interviews of potential witnesses under oath, are often conducted to supplement missing information.
During the trial there is a full hearing of all contested issues. The litigation attorney prepares exhibits of documents necessary to support the requests the client is making. Witnesses may also be called on your behalf. After both you and your spouse have presented all of your financial and family-related documents into the public record and witnesses have testified, the judge issues a decision based upon his or her interpretation of the information and testimony, along with applicable law. If one or both parties are not satisfied with the court’s judgment, appeals can be presented to the appellate court.
Which Option Is Right For You?
Each couple has unique circumstances and goals. Finding the least adversarial approach to resolving disputes is important, particularly when children are involved. Ken helps clients identify and achieve what is important to them so they can move forward with their life. To speak with Ken regarding potential divorce proceedings, Ken Graeber.