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Jul 27, 2015BY: Neil Cahn
IN: Collaboration or Litigation or Mediation

Today’s Divorce Menu: Litigation, Mediation, Arbitration, or Collaboration?

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Menu Woman ReadingTrying something new off the menu seems more enticing when you’re in a different country. The same might be said for the menu of divorce resolution options. Let’s travel north of the border into Canada.

In a July 17, 2011 press release, the Attorney General for Ontario, Canada announced new regulations governing couples divorcing in that province. Before accessing the court system, these couples are now required to attend an information session about their alternatives to the courts. To save time, legal fees and much of the emotional toll of the court system, they also have the option to attend a free mediation session paid for by the Attorney General’s office. This province-wide cost could reach $8 million a year if all couples choose this route, based on current divorce trends.

Now let’s look at the menu for divorcing New Yorkers.

Mediation: Since March 2011, parties to some Nassau County divorce court actions have been required to participate in a mediation session under a program initiated by the late Justice Robert A. Ross, Supervising Judge of the Matrimonial Parts. Similar to Ontario, the introductory session here is free, using one of the more than 40 mediators in the Matrimonial Alternative Dispute Resolution Program. To continue in mediation, the parties must pay for further sessions.

Does mandated matrimonial mediation really work?

Mediation lacks some of the substantive tools of other forms of alternative dispute resolution (ADR). The mediator does not decide the outcome, but merely helps the parties communicate so they can try to settle the dispute themselves. Mediation may be inappropriate if there is a significant imbalance of power between the parties.

Arbitration: In this other type of ADR, the neutral “arbitrator” hears arguments and evidence from each side, and then decides the outcome. In arbitration, the formal courtroom rules of evidence are often relaxed. There are two types of arbitration. In binding arbitration, the parties agree to accept the arbitrator’s decision as final, and there is generally no right to appeal. Binding arbitration is not available for custody and visitation issues. In non-binding arbitration, the parties may request a trial if they do not accept the arbitrator’s decision.

Does arbitration really work?

Arbitrators may not be required to tell the parties why a particular decision is reached and which factors they considered. This may lead a party to believe their position has not been heard or fairly considered.

Collaboration: The newest divorce alternative introduced in New York is Collaborative Law. This inter-disciplinary model brings a carefully paced, civilized, practical process that is financially and emotionally committed to a negotiated settlement without litigation. Each party is represented by a specially trained collaborative method lawyer. A neutral mental health professional helps identify emotional issues that may be blocking the process. And a neutral financial specialist assists with “transparency” on both sides, to accelerate the process at a potentially reduced cost.

Does the collaborative method really work?

Returning to our menu, divorce is an “intermezzo,” the transition before the next course in life. Divorced parents will be co-parenting (or failing to co-parent) their children for the rest of their lives. Even without children, divorce litigation only adds to a couple’s baggage, preventing them from moving on to lead happier lives apart.

In the Collaborative method, the parties are in the best position to decide whether a result is fair and their own interests are being respected. Actively participating in the process and witnessing progress towards a mutually agreeable resolution will lead to a better ability to enjoy life’s next course.

Just desserts: Having a decision simply handed to you by a judge or arbitrator often leads to feelings of bitterness, resentment, and powerlessness. From the Collaborative Law column of your menu, you get to choose feelings of fairness, respect and empowerment. You control your outcome, while improving the skills necessary to resolve issues even after the divorce is final.

All dishes are made to order.

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