There are many ways legal issues can be resolved without going to court. In family law cases, alternatives to court such as negotiated agreement, mediation, collaborative law, and arbitration can be cost-effective, conflict-reducing methods of dispute resolution. Alternative dispute resolution may be used in all kinds of family law cases and is often well-suited for complex cases, such as high-asset matters, because it provides opportunity for more flexibility. It can also be useful in smaller cases, because it may allow for greater cost control. The brief summaries below are meant to introduce the options. The best method for your case depends on your situation and you should discuss your individual options with counsel.
Negotiation is a series of discussions through which two parties work to reach agreement. It can be done with lawyers, without lawyers, or a hybrid (some issues with lawyers and some without). It can be done face-to-face, by phone, in writing, or by a combination of those methods of communication. It requires some compromise from both sides, but it can be a cost-effective way to resolve issues. After reaching agreement one party will have counsel draft a written property settlement agreement. Before entering into direct negotiation with your spouse, it is a good idea to have an initial consultation with an attorney to learn about your rights, which assets are divided, how they are divided, and how support is calculated.
Mediation is a series of meetings in which parties work with a neutral third party (mediator) to help them reach an agreement. The mediator cannot give legal advice (even if the mediator is also a lawyer) and the mediator does not make decisions for the parties, like a judge would. The mediator facilitates communication, helps the parties identify issues requiring resolution, and works with the them on creating their own solutions. In family law, mediation is generally conducted without lawyers present. For this reason, it is a good idea to consult with counsel before you enter this process to understand your rights and other issues associated with your divorce. When agreement is reached in mediation, the mediator writes a memorandum of understanding. This is brought to counsel who will prepare a written agreement.
Collaborative law is a different approach to dispute resolution, based on collaboration rather than competition. The parties and their lawyers work as a team using interest-based bargaining to negotiate the best possible outcome for all. Other professionals (such as a financial advisor, accountant, or mental health professional) may be brought onto the collaborative team to help resolve specific issues within their expertise. The lawyers who practice collaborative family law and other professionals who work as part of the team have special training in this type of work. When agreement is reached, the attorneys will share the work of drafting the agreement and completing the divorce.
Arbitration differs from the previous methods of dispute resolution in that it is not a form of negotiation. In arbitration, both sides agree upon a neutral decision-maker (arbitrator) they hire to decide the legal issues in their case. Arbitration can be binding or non-binding depending on the agreement of the parties. It is a marvelously flexible form of dispute resolution and can be conducted like a trial, with witnesses being direct and cross-examined by counsel, or it can be handled more like a conference, with much of the evidence and argument presented in written arbitration statements in advance. Arbitration can be scheduled at the convenience of the parties, and allows for a more individualized process than a court trial.
Even if you resolve your family law issues out of court, only a court can grant a divorce decree, so once an agreement is signed, or an arbitration award issued, someone will still have to file for divorce. In Pennsylvania, this can generally be done by a series of court filings and does not require an actual appearance in court.
Advice of Counsel
Some of these forms of dispute resolution are not appropriate for cases involving domestic violence, high conflict, or power imbalance. If your case involves these issues, it is important to consult with counsel. Even without these issues, before you begin any form of dispute resolution or sign anything, you should consult with a lawyer to learn about your rights and obligations, and to explore your options.
The divorce and family law attorneys of Shemtob Draganosky Taylor can guide you through all of your divorce and family law matters including negotiated agreement, mediation, collaborative law, and arbitration. Call us at 215-542-2105 for a confidential discussion.
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