Alternative Ways to Resolve Legal & Divorce Disputes
Taking someone to court isn’t the only way to resolve disputes – or even, often, the best way.
In fact, the greatest benefit of alternative dispute resolution is that you have greater control over the outcome of your case because you are an active participant in it. Another benefit is that it tends to be less expensive than going to court, as well as being quicker.
Litigation is uncertain: No matter how good your attorney, he or she can’t guarantee the outcome. Your fate ultimately depends on the ruling of a judge who doesn’t know you or your circumstances. Alternative forms of dispute resolution, such as mediation, arbitration, and collaborative law, allow you to work with the other party to craft agreements that are more customized for your particular situation. Agreements made in these ways also tend to reduce friction and animosity between you because you are both involved in creating the solution.
Alternative dispute resolution is particularly suited to family law, where matters are often highly emotionally charged and complex. These matters are very personal, and you and your family are the only experts on the situation. Consulting with a qualified attorney can help you understand which method of dispute resolution best fits your situation and how to ensure that your best interests are being protected within the complexities of Indiana law.
Types of Alternative Dispute Resolution
Indiana law accommodates three common types of dispute resolution: mediation, collaborative law, and arbitration. Each has a distinct purpose and process, but all three have this in common: They are usually much less expensive and time-consuming than a formal court trial. Brief explanations of each of these approaches are provided, below.
Mediation is a process where a disinterested third party (usually an attorney) helps the people involved in a dispute reach a compromise regarding their situation. Because family law matters are very personal and people’s emotions can cloud their judgment, it benefits you to have a mediator look at both sides of the dispute and help you find the common ground on which agreement can be built.
Because your own attorney was hired to advocate for you, he or she is usually not the right person for the job. For mediation to work well, another attorney or certified mediator – one who is impartial to both sides of the dispute – is generally engaged, working for and focusing on the solution, not the individuals involved. A good mediator facilitates open communication between you and the person with whom you are negotiating a resolution. He or she is not there to take sides or force their own agendas. If agreement – overall or on specific issues – seems impossible, the mediator might suggest arbitration or other means of resolving the dispute, but this is usually a last-resort measure.
The mediation process is confidential and private. Anything discussed in mediation cannot be brought back into the courtroom if the mediation fails. Unlike courtroom trials, mediation allows you and your family to decide what is best for you, based on your intimate knowledge of your particular circumstances. Because it is a give-and-take process, any agreements and outcomes resulting from mediation generally feel better than orders handed down by a judge, which often helps reduce tension and animosity between you and the other person or people involved.
While mediation is far less expensive than litigation and is usually much quicker, your monetary and time investment depends greatly upon how cooperative you and the other people involved can be. Some mediations can last a little as a day if you come prepared and ready to compromise.
Are You Prepared?
Mediation can be relatively painless if you’re prepared. We provide a few ideas about how to prepare for mediation: what to bring and a few things to consider.
Collaborative law allows you and the other people involved in the dispute to maintain control over your personal situation. The point of collaborative law is to reach a settlement agreement, which can include things such as property division, child support, will or trust disputes, and many other concerns typically touching family law. As part of the process, everyone involved in the dispute agrees to a timeline for resolution and signs an agreement that they will not litigate the matter in the future. Should that agreement be broken, the attorneys representing you generally do not follow you to trial – which means having to start over with explaining your case and building up trust, confidence, and teamwork, not to mention starting over financially. The difference between collaborative law and mediation is the mediator. In collaborative law the lawyers work with you to find a solution that works for all parties.
When it works well and the parties are cooperative, collaborative law tends to be a much less stressful experience than a trial. Like mediation, it also keeps the control over the outcomes in your hands, allowing you and the other party or parties to tailor the solution to the particulars of your lives. Moreover, the process allows for other professionals to become involved in the settlement. So, for instance, in the case of a divorce, you and your spouse might involve divorce coaches, therapists, or other supportive resources to help keep the process of dissolving your marriage and transitioning to separate households less stressful and less driven by emotionally-charged decisions. The resulting agreements are more personalized and often require less tweaking over the years.
Although agreement can be reached on most issues through other methods of dispute resolution, sometimes there are sticking points where agreement feels impossible. When that happens, arbitration can be a good solution for preventing those issues from moving to the courtroom floor.
Arbitration is very similar to mediation, with one important difference: Where a mediator’s job is to lead the parties to agreement, the arbitrator functions more like a judge, in that they weigh legal arguments and evidence, then make a final decision on the issues. Arbitrators are appointed by the court and have the authority to rule on the matter, filing the order with the court to have it approved by a judge and made officially binding under the law. These orders can be appealed, just like any other court order, but at that point, the case goes to trial, which can be both costly and time-consuming.
Like other forms of alternative dispute resolution, arbitration tends to be less expensive and takes less time than waiting for the court to schedule a formal trial. Because arbitration is generally held in the office of the arbitrator, rather than in a courtroom, the process is much more private and can be less stressful for the parties involved. Remember that divorce cases are a matter of public record, which means that anyone – family members, community members, even the press – can access court records. Details about your personal lives can be aired for all to hear and can be taken out of context, which can cause misunderstandings and ripples throughout your social and professional circles.
For these reasons, arbitration can be appealing to families wishing to keep their private matters out of the spotlight.