Many couples who are struggling in their marriage are resistant to the idea of getting divorced because they believe that there is only one method available. In the past, the only legal avenue for divorce was litigation, which can easily become adversarial and expensive. Moreover, it leaves major decisions up to a judge (or other court professional) rather than the divorcing spouses.
Thankfully, there are several additional forms of divorce that fall under the category of alternative dispute resolution. In this post, we’ll discuss two forms of ADR that are becoming increasingly popular here in Kentucky: Mediation and collaborative law. While there are several similarities between the two, there are also some important differences.
Seeking agreement in mediation
Both forms of ADR mentioned above involve discussions outside of a courtroom setting. In mediation, those discussions are facilitated by a neutral third party known as a mediator. The mediator will not take sides and cannot make any major decisions for the couple. Instead, his or her job is to keep the discussion going until the divorcing spouses reach agreement on each issue on their own. After that, the agreements will be formalized in writing.
Mediation can involve as few as three people (the mediator and two spouses), but each spouse also has the option of having an attorney present to consult with.
Direct negotiation in collaborative divorce
Instead of using a neutral third-party mediator, collaborative divorce is a series of direct negotiation between two spouses, each of whom is represented by an attorney with special training and experience in collaborative divorce. With mutual consent, you can also involve other professionals in the negotiations as well, including financial and mental health professionals.
The benefits and requirements of both approaches
Compared to litigated divorce, both mediation and collaborative divorce tend to:
- Be faster
- Be less expensive
- Be less adversarial and stressful
- Give each spouse more control over the outcomes
- Result in less stress and trauma for the couple’s children
- Be more private
These are some obvious upsides that make it seem like everyone would want to choose one of these options over litigation. But it is important to note that ADR methods are only possible if spouses can remain civil toward one another and agree to negotiate in good faith. If one or both spouses refuse to cooperate, if there have been allegations of domestic violence or dishonesty about finances, litigation may be the only option.