Alternative Dispute Resolution
Sometimes, negotiation between the divorcing parties or lawyers is not the best option or has failed despite the best efforts of the spouses and their divorce attorneys. In that case, most people will elect to attempt a form of alternative dispute resolution (ADR) in order to avoid the cost and uncertainty of trial (see next step). The main forms of ADR are mediation and arbitration.
This is a non-binding process in which the parties will select a mutually agreeable third-party lawyer to assist them in negotiations. With the right mediator and the right attorneys, almost any case is resolvable at mediation.
Discussions at mediation are confidential, and communications between the parties are inadmissible in court. In the event that an agreement is not reached at mediation, either spouse is free to proceed to trial as though mediation never occurred.
Arbitration is similar to mediation in that the parties select a mutually agreeable third-party lawyer to assist them in resolving the matter. However, unlike the role of a mediator in mediation, an arbitrator acts like a judge and makes binding, legally enforceable decisions that the divorcing spouses must abide by.
Before heading to arbitration, the parties will sign an agreement in which they agree that the arbitrator will decide any disputed issues. In this case, there is no trial because the arbitrator will have decided all disputed issues.
The benefits of arbitration over trial include reduced cost, less formality, and the ability to choose the decision-maker. In contrast, a trial is decided by a judge who is randomly assigned to the divorce at the beginning of the case.