When the subject of divorce comes up, it often brings to mind a courtroom battle, long drawn-out fights over custody or property, and extensive emotional distress for the whole family. Fortunately, there are non-litigated options, called alternative dispute resolution (ADR), that are now much more available to divorcing couples. In California, the court system promotes ADR methods as a means of freeing up court schedules and streamlining divorce settlements.
There are many benefits to a non-litigated divorce. A divorce that is settled out of court is much less expensive and takes less time than one that is contested. There are many fees including courtroom fees, filings, discovery and appraisals, not to mention billable hours for retaining a divorce attorney throughout the length of a divorce proceeding that may go on for months or even years.
In a non-litigated divorce, the emphasis is on negotiation, not contestation, and is usually more focused on the needs of each client and the benefits of resolving conflict. When both sides come out of the process with something of value, it creates a win-win settlement that can allow more amicable relationships post-divorce. This is good for the spouses and also any children who may be involved. Finally, unlike litigated divorce, ADR divorce is private.
ADR divorce in California
Two common approaches to non-litigated divorces in California are mediation and arbitration. Both methods offer the services of a third-party neutral, often a trained ADR attorney, who hears and facilitates conflict resolution in order to come to a mutually agreeable outcome that is settled out of court.
In a mediation, the third-party neutral first meets with each side to pinpoint both points of agreement as well as conflict. This mediator discusses the goals and priorities of each client as well as their concerns before the two sides even come together. The, when the two parties meet, the mediator can present the issues where they are already in agreement on the table, which provides momentum to then discuss more difficult issues.
Arbitration more closely aligned with courtroom trials in that procedural and evidentiary rules are followed, however, it is less formal than a courtroom process and is private. The arbitrator acts as a judge in deciding points of contention, and sometimes the entire divorce except for child support and custody.
Arbitration can be binding, in which the decision of the arbitrator is final, or nonbinding, in which the parties may then go to trial. The process typically is finished in a few meetings, and it is a less costly and faster resolution of disputes than a litigated divorce.