Alternative Dispute Resolution in Divorce

+ What is Alternate Dispute Resolution?

Alternate Dispute Resolution is used when divorce lawyer negotiations have broken down and describes the different ways to resolve a case without a final court hearing. After a Relationship breaks down, having a constructive conversation with your ex-spouse can often seem impossible. It’s only natural that you won’t agree about some things but that does not mean you won’t be able to settle out of court. There are several out-of-court processes to help you reach an agreement without getting embroiled in drawn-out, contentious court proceedings. These include divorce mediation, collaborative divorce, and arbitration.

Divorce Mediation

Divorce mediation is a structured process where a neutral third party assists in resolving divorce-related conflict. A trained divorce intermediary will use effective communication and negotiation techniques to encourage both parties to actively participate in the process and look at settlement options.

Mediation can be especially successful and beneficial for those with children due to the proactive, positive approach which can minimise conflict while reaching a fair, favourable outcome.

The mediator starts by meeting each person individually to understand what they want. Both parties will then prepare a full financial disclosure before meeting together to discuss settlement options.

All negotiations and discussions take place on a ‘without prejudice’ basis, which means that if matters do not settle out of court and an application is made later the court will not be made aware of the proposals made.

While mediators may also be trained lawyers, they are not able to provide legal advice. That’s why it’s recommended that you receive ongoing legal advice from a solicitor who can instruct on the fairness and suitability of proposals being made in mediation.

A mediator cannot advise the parties but can provide information as to whether a desired outcome is within the bounds of what would be approved by a court.

Collaborative Divorce

Collaborative divorce is a form of ADR where the goal is to reach a voluntary settlement that meets the needs of both parties and their children. It can be highly successful if everyone is invested in the process and shares the clear aim of resolving matters without involving the courts.

Both parties are represented by a trained collaborative lawyer and they work together to reach a fair settlement. The case is dealt with mostly in four-way meetings between the couple and their respective lawyers. Couples can also work with other relevant professionals such as independent financial advisors, accountants, and child specialists who may join the meetings to provide neutral information. Meetings are conducted in a safe neutral space which can help to diffuse the tensions associated with the divorce process.

When engaging in collaborative divorce, both parties agree to provide full financial disclosure, negotiate in good faith and not use the court process. The process ends if either party issues court proceedings.

When couples are prepared to engage with the process and are willing to cooperate it can lead to finding mutually acceptable solutions with both parties more likely to respect the settlement in the long run.

Arbitration Divorce

Arbitration is the closest to a court process without actually stepping foot inside a court. It involves both parties appointing a suitable trained and qualified arbitrator who is authorised to make decisions on the issues involved in the divorce. Their decision is final and binding. Arbitration can address a wide range of financial issues and there are specialist arbitrators for children. The process can cover a whole range of issues in a divorce, from the entire proceedings to a narrow point in dispute.

The advantage of going down the arbitration route, if you cannot agree through negotiation or mediation, is that you can resolve disputes in a less formal setting, with more flexibility on the timetable, choice of arbitrator, and location of hearings. The process is often quicker than court proceedings as parties are not dependent on the court listing schedule of hearings, which can take months if the court is busy.

The drawback is that the arbitrator has no power to compel financial disclosure so it may not be suitable if you believe your ex may be hiding assets. Nonetheless, the arbitrator can draw adverse conclusions, with the power to award costs to the offended party, if they are not fully satisfied with either party's disclosure.

You will have to pay a fee for arbitration as well as your divorce lawyer fees, but you will typically get a quicker final decision in a more private, comfortable setting than court. The flexibility and expediency can make it more cost-effective overall.

+ When are court proceedings required?

There is a clear advantage to settling your divorce out of court. Not only can you avoid the cost, time, and stress that court proceedings bring, but out of court settlements tend to be less confrontational. This is especially important when children are involved because it’s vital to preserve an amicable co-parenting relationship.

For any ADR to be successful both parties must be motivated by a shared desire to be open, transparent, pragmatic and compromising. When that attitude is lacking on either side, ADR is unlikely to be successful.

Alternate Dispute Resolution will not work for everyone going through a divorce. If you or your ex-spouse are not honest about your finances or prepared to reach an agreement then the case will need to be decided either through arbitration or in court. Our family lawyers are committed to choosing out of court resolutions. Where it is not possible to resolve matters through negotiation, mediation, or collaborative divorce we can advise on the next steps to take.

Whatever route you choose, our experienced lawyers are here to support you. We’ll handle your case sensitively to ensure you get a fair divorce settlement.