While litigation is still an option today for divorcing couples, many are turning to alternative dispute resolution (ADR) options to save money, save time and more effectively control the outcome. By engaging in ADR methods such as mediation, arbitration or collaborative law, couples hope to avoid the courtroom, preserve their dignity, resolve differences, and if necessary, design a post-divorce relationship that meets the needs of those involved, most importantly minor children.
According to experts, however, ADR options are not for everyone. For example, mediation is not a place to coerce a partner or get around the law. Mediation may not be appropriate for the mentally or emotionally incapacitated, or anyone struggling with substance abuse or domestic violence. Parties are advised not to mediate unless they feel capable, supported and safe. Most experts also advise that in order for mediation to be meaningful, effective and fair, both spouses should have relatively equal “bargaining power,” and should not be overly emotional, angry, fearful or intimidated by the other. In addition, full disclosure is required and both individuals must be fully informed of all relevant issues – i.e. legal rights, assets and liabilities, etc.
In the greater Houston metropolitan area, most divorcing couples are required to at least try mediation before going to court. Mediators can be neutral attorneys, financial or healthcare professionals, or other trained professionals who know divorce laws. They should also be experienced in facilitating communication to help couples reach a settlement that is fair, meets as many of their individual needs as possible, and is in the best interests of their children. Mediators have no decision-making authority, unlike a judge or arbitrator. Generally, a divorcing couple and their attorneys select a mediator.
Trained divorce mediators study the art of conflict resolution, and can often help couples state their positions clearly and concisely, and listen to each other’s desires throughout the process. The goal is to prevent couples from bickering over minor items, and encourage them to focus on the significant areas of their divorce settlement agreement such as parenting, finances, property division, and tax consequences.
One of the greatest areas of conflict in a marriage is money. And the strain it can put on a relationship only escalates in divorce. As a sometimes divorce mediator and a participant in mediation proceedings, I have found that providing couples with a thorough short- and long-term overview of potential financial settlements can often help them better understand the key issues quickly so they can get to an equitable outcome. Focusing on the numbers allows couples to separate emotional from substantive issues and hopefully, resolve both.
Sometimes mediation does not result in a settlement agreement. If this occurs, the couple may choose to return to a second mediation, participate in arbitration (where a judge or attorney hears the parties, reviews the numbers and makes the decisions) or proceed to litigation. Either way, at least the couple tried to work out an agreement and are likely several steps closer toward an eventual settlement. In my next column, I will discuss other forms of collaborative divorce.
Join Patricia Barrett at one of her upcoming 2013 Houston Leisure Learning classes on May 13, June 10, July 29 and September 29. She will also be presenting at the Guide to Good Divorce seminars in Houston on July 20 or September 28. For more information on divorce financial planning or divorce mediation, visit Lifetime Planning.