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What You Should Know about Alternative Dispute Resolution Options in Divorce

Q: My wife and I are thinking about ending our marriage, but we’d like to avoid a “knock down drag out” divorce. Is that possible?  
A:
 Yes. There are several options available, including collaborative divorce, early neutral evaluation and mediation.

Q: What is collaborative divorce? 
A: 
Collaborative divorce, also called collaborative dissolution, is a “team” process in which the parties engage attorneys and other professionals to assist in the negotiation and settlement of their dispute. Collaborative law uses an “interdisciplinary model,” meaning that third-party “neutrals” (such as CPAs, valuation experts, child psychologists and mental health professionals) are engaged to assist the team. The goal is not to just get signatures on the dotted line, but also to address underlying issues in reaching a lasting agreement.
 
Q: What are some advantages and disadvantages of a collaborative divorce?
A:
 One advantage of a collaborative divorce is that it focuses negotiations on helping parties to communicate effectively over the long term. This generally minimizes the negative impact upon children. It is also less expensive, both financially and emotionally, than litigation. All information is shared and all negotiations take place in face-to-face “four-way” meetings. Generally, these meetings foster trust because the other spouse’s attorney does not function as an adversary. Each of the lawyers is retained for the limited purpose of helping the clients reach an acceptable settlement without litigation or threats of litigation. This allows the lawyers to focus on creative solutions rather than on preparation for trial.

One disadvantage is that, if the collaborative process fails, neither lawyer who was engaged in the process can continue to represent the client. Therefore, each client must retain new counsel for litigation. At any time during collaborative negotiations, each side has the unilateral right to terminate the process and force the other party into litigation.

Q: What is early neutral evaluation? 
A: 
In early neutral evaluation, the parties meet with a neutral third party who has experience in family law. Both parties present information and the neutral offers each party a confidential opinion regarding the likely outcome of the case and an analysis of strengths and weaknesses of each side’s arguments. The purpose of this evaluation is to give both parties a realistic view of the case and to encourage settlement.

Q: What are the advantages and disadvantages of early neutral evaluation?
A: 
One advantage is that the neutral party acts as an educator, consultant and evaluator, which can encourage the parties to explore a broad range of creative options and solutions. An early neutral evaluation can give both parties an objective assessment of the issues at hand and the relative strengths and weaknesses of each party’s position, which can help the parties reach a fair and reasonable settlement. The neutral does not provide any individual, personal legal advice to either party. Also, the neutral does not draft any pleadings or other documents for either party. At the end of this process, the parties are referred to other lawyers for personal advice and drafting of documents.

In cases where parties are in high conflict or where there are personality disorders or drug or alcohol addiction issues, this option may not be appropriate or effective. Since the parties’ lawyers generally do not participate directly in the negotiations, any agreement that was reached may be scuttled once each party receives her or his lawyer’s critique.

Q: What is mediation?
A:
 Mediation is a process in which a mediator facilitates communication and negotiation between parties to help them reach a voluntary agreement about their dispute. The mediator is not authorized to make a decision for the parties.

Q: What are the advantages and disadvantages of mediation?
A:
 A neutral mediator facilitates resolution by direct, face-to-face negotiations between the parties. Also, the parties retain control over decision- making and consider each party’s needs and interests, along with a wider variety of options. Because mediation does not focus on evidence and the law as in an adversarial process, the potential for long-term conflict between the parties may be reduced. Costs for the participants also may be lower.

A disadvantage is that the mediator cannot individually counsel either party. The mediator is, for example, limited in getting necessary information if one party is reluctant to provide it. As with the early neutral evaluation process, any agreement may be scuttled when each party receives her or his lawyer’s critique, since the parties’ lawyers generally do not participate directly in negotiations.

10/31/2011

This “Law You Can Use” column was provided by the Ohio State Bar Association (OSBA). It was prepared by S. Scott Haynes, a OSBA Board Certified Family Law Specialist who is associated with the Columbus law firm of Blaugrund & Herbert, Inc.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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