Alternative Dispute Resolution methods will resolve most family law issues
Wednesday, October 29, 2014
In New Jersey, as in many other states, the settlement rate in Family Court is over 98%. There are many ways to resolve contested family law issues quickly and effectively without resorting to traditional litigation. If you are in a family law dispute (divorce, child custody, child support, alimony, division of assets or debts, adoption, etc.), then you may be able to resolve it privately and out of court by Alternative Dispute Resolution (ADR) or inside the court system by Complementary Dispute Resolution (CDR). ADR or CDR may include methods like mediation, arbitration, early neutral evaluation, collaborative law or party-to-party negotiations. The CDR methods, set forth in New Jersey Court Rule 1:40, are designed to give people options, allowing them to pick, in consultation with their lawyers, the dispute resolution path that is best suited for their unique situation.
One of the most popular and established CDR methods is mediation. Mediation is a process in which a neutral third person works with the parties to reach resolution on disputed issues. Mediation requires the parties to work together, and it is crucial that candor and respect be a part of the process. Unlike a judge or arbitrator, the mediator doesn’t actually make decisions on behalf of the couple, but rather facilitates the parties’ negotiations, helps them develop options and encourages them to craft their own solutions. It works best if parties have their own separate lawyers who can act as coaches and advisors, and, if necessary, mediation advocates.
Mediation is a great option for many divorcing couples, particularly those who have maintained an amicable relationship and don’t have complex issues to resolve. It can also be useful when the parties are drafting a prenuptial agreement or want to make changes to existing child custody or parenting arrangements. Mediation is also helpful when parties have problems with tax reporting and do not want to take their matters before a public judge, who may feel required to involve the tax-collecting authorities.
Collaborative law is similar in some respects to mediation, but instead of having an impartial mediator guiding them towards resolution, separate lawyers and a panel of experts are there to help the parties along. The panel of experts each has a special focus (financial planners and mental health professionals are two examples). Like mediation, collaborative law also requires an open line of communication between the parties and both legal counsel, so it generally wouldn’t be appropriate for situations involving domestic violence or abuse, or when emotional upheaval prevents the parties from working together to achieve common goals.
Some parties prefer having lawyers advocate for them during the process, because they fear they cannot make a good presentation or feel intimidated by the other party. Collaborative law can work well in that situation.
In collaborative law, each party must agree up front and in writing that, should they not be able to reach a resolution, they must part ways with their current legal advisors and hire new representation to proceed to court. Financial incentives and a strong desire for closure encourage both parties to set their differences aside and find common ground. If an impasse should occur that the lawyers and parties cannot overcome, even in consultation with the experts, then the parties should consider bringing in a mediator to help them bridge the final gaps, or an arbitrator to make final and binding decisions without the right of appeal.
Which ADR or CDR method is best for you?
Gone are the days when the only option for resolving family law disputes was protracted, expensive, public litigation. We now live in a world where the Family Court and private practitioners recognize the value of tailored approaches to parties’ family law disputes, depending upon each family’s unique circumstances and goals. To learn about which ADR or CDR method could be a good fit for you, please contact Hanan M. Isaacs, Esq., a New Jersey Supreme Court Certified Family Law Specialist, an Accredited Professional Mediator by the NJ Association of Professional Mediators, and a trained and experienced divorce arbitrator and collaborative lawyer.