Choosing Your Approach to Resolution

• Author: Rochelle Grossman
• Pages: 8-10

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the mediator will propose dierent alternatives to consider.

e parties are required to negotiate in good faith and openly

disclose all relevant information. Although the mediator

cannot provide legal advice to the couple, she will urge the

parties to seek independent legal advice to coach them

through the process. Equipped with an understanding of

their legal rights and obligations from their individual

lawyers, the parties can proceed on a level playing eld,

prepared to make competent and informed decisions that

will result in an enduring agreement. Parties who have

control over their solutions are more likely to honor their

agreement, thereby reducing the likelihood that enforcement

through the court will be necessary in the future.

Cost Considerations

With the exception of a “kitchen table agreement,” media-

tion remains the most cost-eective means of dispute

resolution. e lawyers’ role is limited to providing advice

and coaching outside the mediation process. e parties will

not incur the substantial legal fees associated with litigation,

which involves discovery (information gathering and

exchange), preparation and submission of legal pleadings and

briefs, and court appearances. Although there will be a cost

for the mediator (in addition to the cost of the individual

lawyers), the overall cost savings are signicant. Mediation

creates positive results at a fraction of the cost of litigation.

Ultimately, a mediated resolution leaves the parties with the

sense of satisfaction that comes from speaking their peace in

a mutually respectful forum in which they nd and reach a

solution on their own.

Arbitration—Selec t Your Judge for Final

Resolution

Arbitration is an alternative to the court system for litigants

who are not able to resolve their conicts by agreement. e

parties will select an agreed-upon arbitrator who will provide

an expedited proceeding during which she will hear all the

Choosing Your Approach to Resolution

By ROCHELLE GROSSMAN

By nature, divorce can be, at best, a dicult

and expensive process. From the inherent

emotionality of child custody and relocation,

to the complexities associated with the

distribution of assets and spousal support, the

legal costs of dissolving the marriage can leave

each party with a fraction of the marital estate they created.

Litigation costs for divorce can spiral and balloon, leaving

parents no choice but to tap into the college funds intended

for their children’s education, unexpectedly burdening

children. Factor in time delays and the bureaucracy of the

court system itself, the prospect can rapidly escalate from

intimidating to outright daunting. Fortunately, less intimi-

dating, less expensive, and less time-consuming dispute-

resolution options are rapidly integrating into the mainstay

of family law. Alternatives for “going to court” exist. Utilizing

them can reduce costs, time, and family friction and preserve

the marital estate for the post-divorce phase of life. What

follows is a menu of more “user-friendly” alternative dispute

resolution options, which can make the process more

nancially and emotionally manageable.

Mediation—G iving Peace a Chance

Mediation is the process in which couples meet in an

informal and private setting with a specially trained third-

party neutral with the goal of resolving their dierences. e

neutral “mediator” facilitates communication between the

parties by allowing them to ush out relevant issues and

share their perspectives. e mediator then explores settle-

ment options with the goal of reaching an agreement. e

key feature of mediation is that the mediator is a facilitator,

not a judge or arbitrator; therefore, she can neither intervene

nor make decisions in the event of an impasse.

By encouraging creative solutions that may not otherwise

be available through the public justice system, the mediation

process enables a couple to control their outcome. After

listening to the views of each party—without taking sides—

Published in Family Advocate, Volume 43, Number 1, Summer 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

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