When divorcing spouses disagree on significant matters like property distribution, spousal support, child custody, or visitation, the process becomes contentious and may even end up in court.
This causes discussions to drag on for longer than necessary and often results in an unpleasant and costly legal struggle.
However, many couples would rather not go through the legal system to settle their contentious divorce. This article provides information on how to settle a divorce dispute without going to court.
Mediation
In mediation, a neutral third party (the mediator) assists divorced spouses in communicating and negotiating in order to resolve their differences.
With the mediator’s help, the couple can come up with their own plan to resolve the conflict. Although mediation can be performed at any time, it is most effective once the parties have filed their initial legal documents and identified the issues at hand.
Compared to going to court, mediation has many advantages. It gives parents the opportunity to put their children and their own well-being ahead of a drawn-out legal battle. Instead of leaving decisions about the settlement up to a judge, the couple can make those choices themselves.
Since fewer lawyer hours are needed during mediation, it is typically more cost-effective than litigation. Unlike court sessions, proceedings are kept secret. Also, the procedure has more leeway, so alternative, non-judicial solutions can be considered.
Mediators employ a wide range of strategies to assist disputing parties in having fruitful conversations and arriving at mutually agreeable solutions. If both parties are in full agreement after mediation, the conditions can be used as the foundation for a divorce settlement agreement filed with the court.
But mediation isn’t a surefire way to reach an agreement. Trial may still be necessary if crucial issues have not been settled. However, mediation is often successful in resolving specific issues, thereby reducing the overall scope of the disagreement.
Related: What is a Contested Divorce?
Collaborative Divorce
The parties to a collaborative divorce agree to work together to reach a settlement outside of the court system. Each side is represented by their own attorney, as well as a financial and mental health specialist who are not affiliated with either party.
Teams meet often to discuss issues, brainstorm potential solutions, and exchange information.
The participation of attorneys is a major differentiating factor between collaborative divorce and mediation. The lawyers are there to offer sound legal counsel and support to the client at all times.
They’re useful for making sure each partner’s needs are met. However, unlike traditional lawyers, these professionals are skilled in interest-based negotiation and not just aggressive advocacy. The hope is to avoid going to trial.
The advantages of the collaborative process are comparable to those of mediation in terms of adaptability, confidentiality, financial savings, and attention to the requirements of the family. Since all parties have a hand in creating the settlement, the satisfaction percentage is higher for those obtained through collaborative efforts.
If the collaborative effort fails, however, the lawyers will have to drop their clients as clients and stop representing them in court. To proceed with litigation, each parties will need to retain separate legal representation.
Related: How Long Does a Contested Divorce Typically Take?
Private Settlement Negotiations
Couples always have the choice of trying to settle their differences amicably on their own or with the help of attorneys. This may happen prior to filing for divorce or concurrently with the court proceedings.
If the parties are unable to reach an agreement during settlement negotiations, a trial may be necessary to resolve the dispute. However, many couples are able to settle their differences via open and frank discussion and negotiation of all or most of the concerns.
Private settlements are like mediation and collaboration in that they put the partners in charge of the outcome. The couple’s private issues are kept out of the courts as well.
Meeting in person, talking on the phone, sending an email, or writing a letter are all valid options for reaching a settlement. In order to protect their rights and interests, clients should seek legal counsel before signing any documents.
If both parties agree to all terms of the divorce outside of court, the settlement terms can be included in the divorce petition. When parties can reach a partial settlement, it helps streamline the court process by eliminating disputed issues that both parties can agree on.
However, if communication breaks down or emotions increase, the discussions may be fruitless unless an impartial professional is present to facilitate. When successful, however, private settlement preserves the matter under the direct authority of the couple.
Arbitration
To settle divorce-related disputes, some couples choose for arbitration, in which a third-party neutral party is hired to act as a private judge and give legally enforceable rulings.
Since the arbitrator makes the final decision instead of the couple, it is less flexible than mediation. However, it saves both parties the trouble and money of protracted litigation.
The arbitrator, who is typically a retired judge or an experienced family law practitioner, is selected by the divorce parties themselves. Subsequently, the arbitrator presides over a hearing at which the parties present testimony and evidence in support of their respective positions on the outstanding questions.
Private meetings spread out over several days or weeks can accomplish this. All disputes must be settled by the arbiter’s final decision.
Like litigation, arbitration has its advantages and disadvantages. Legal arguments, witness testimony, and evidence are still used at the proceedings. However, there is a more personal atmosphere and schedule is adaptable. Arbitration is frequently more expedient and economical than litigation.
However, the ability to challenge the arbitrator’s ruling is severely limited. Overall, those involved in a contested divorce can reach a final conclusion more quickly through arbitration than through a court trial.
When choosing paths to resolve a contested divorce out of court, the best approach depends on factors like:
- Level of conflict and ability to communicate
- Degree issues are contested
- Complexity of assets involved
- Willingness to compromise
- Need for privacy versus public record
- Importance of retaining control over outcome
- Concerns over rights and interests
- Cost considerations
An expert divorce lawyer may evaluate these considerations and advise their client on which conflict resolution approach may best meet their needs and goals.
Those going through a disputed divorce should know that most cases can be settled out of court using one of these strategies. Although there are times when litigation is unavoidable, it is always better to look into other options first to save time, money, and stress.
Many people discover the independence they want via divorce more quickly when they are helped to negotiate a settlement outside of court.