Avoiding court is a common goal of many clients. Not only can it be expensive and time consuming, but it can also be emotionally exhausting and do further damage the parties’ relationship particularly when they need co-parent. Being prepared for court ensures that a client will always give themselves the best chance at a favorable outcome to their case, but that does not mean a case may not be better served by staying out of court.
“Alternative dispute resolution” is a phrase more commonly heard in civil and commercial litigation cases, but the same principles apply in family court. It describes a category of methods for keeping cases out of court and away from traditional litigation. The advantages being that the parties have more control over the time-frame, costs, and legal issues being addressed in their case. The following is a list of the most common alternatives to going to court:
1. “Four Way Meeting” – the two parties and their two attorneys sit down together and work on settling the case. The goal of these meetings should be a written agreement between the parties.
2. Mediation – the parties meet with a neutral third-party to try to reach a mutually agreeable solution. The mediator guides them through their issues and suggests ways to resolve disputes. The mediator will not make decisions, however, and the case is settled only when the parties sign a settlement agreement.
3. Arbitration – an attorney or expert is hired by the parties to effectively serve as “judge.” The major advantages to this method are that the arbitrator does not have the scheduling constraints of the court system; operates within the rules the parties decide upon in advance, and; addresses only those agreed upon issues. Though often the closest method to traditional litigation, it usually allows cases to move forward more quickly and, for complex cases, less costly.
4. Collaborative Law – this is a catch-all term encompassing many of the concepts identified in the other methods while also suggesting a philosophical shift away from litigation. Collaborative law often means a series of sessions and meetings between the parties and counsel to work through issues; shared costs and resources for the valuation of the marital estate or custody evaluations, and; a cooperative rather than adversarial approach between the parties and their counsel.
Each case requires a different approach and there will always be some cases which need to move through the traditional litigation track. Where appropriate, however, these forms of alternative dispute resolution can provide parties with the opportunity to expedite their cases and, hopefully, invest fewer financial and emotional resources to the process.