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Apr 15, 2024

Exploring Alternative Dispute Resolution in Family Law: Collaborative Law and Arbitration

A trial is only one of the possible outcomes of a divorce case. Even though,.

Exploring Alternative Dispute Resolution in Family Law: Collaborative Law and Arbitration

A trial is only one of the possible outcomes of a divorce case. Even though, after one spouse files for divorce, it is unlikely that the parties will reconcile and decide to remain married, it is also unlikely that their divorce case will require a trial. There are plenty of other ways to finalize your divorce. No matter which way your divorce case proceeds, the goals are the same, namely to divide the couple’s marital property in a manner acceptable to both spouses and, if the couple has minor children, to finalize a parenting plan that addresses parenting time and nom-financial decisions related to the children’s upbringing. Whether you go the conventional route with court-ordered mediation or whether you choose arbitration or collaborative divorce, a Tempe divorce lawyer can help you finalize your divorce with as little cost and expense as possible.

Alternative Dispute Resolution: Arbitration is Like Litigation Without a Judge

Only the most acrimonious divorce cases go to trial. If you are presenting your case before a judge in divorce or parenting plan proceedings, it is either because you and your spouse were unable to resolve your disagreements in mediation or because your relationship is so volatile that a court has entered a restraining order forbidding you and your spouse from being in the same room under any circumstances. Unfortunately, things do not usually get better after a family court trial, at least not in the short term.

Pursuant to Arizona’s community property laws, judges in divorce cases divide the couple’s marital property in half; when this is not possible, they divide it as close to evenly as they can. The result is usually that both spouses feel that they did not get to keep enough property and the other spouse got to keep too much. In parenting plan cases, there is no presumption of equal parenting time, but rather, judges decide on a case-by-case basis about the division of parenting time that best serves the children’s best interests. The result is usually that neither parent is content with the judge’s decision.

In this regard, arbitration is a lot like trial, but it counts as alternative dispute resolution because the arbitrator who makes the decision is not a judge. Still, the final decision about property division and parenting time is up to the arbitrator. One difference between arbitration and litigation, though, is that arbitration decisions are private, whereas court decisions become a matter of public record.

Mediation is a Prerequisite to Trial

Mediation is one of the most common scenarios in which family law cases are able to avoid trial, but almost every couple that goes to trial has also attended mediation since the court orders it as a prerequisite to a divorce or parenting plan trial. In mediation, both spouses, represented by their lawyers, negotiate about the issues on which they disagreed in the divorce petition and response.  The mediator does not make decisions but rather facilitates negotiations. The spouses may or may not be in the same room during mediation sessions, depending on the level of conflict in their relationship.

Collaborative Divorce is Like Mediation Without a Mediator

Collaborative divorce is different from mediation in that it stays collaborative from beginning to end. In a collaborative divorce, each spouse hires a lawyer, but there is no mediator, arbitrator, or judge. Instead, the lawyers simply negotiate with each other to reach an agreement; after the first session, they may decide to consult other professionals to advise them about the couple’s finances or the children’s well-being. The collaborative divorce process begins with the spouses and their lawyers signing an agreement to engage in collaborative divorce proceedings.

The same lawyer can represent you throughout mediation, arbitration, and, if necessary, your trial, but this is not the case for collaborative divorce. Instead, if it turns out that you and your spouse cannot reach an agreement about all of your issues through collaborative divorce, the collaborative divorce process must formally end. The lawyers must withdraw from representing their clients, and the divorce process must begin again from zero. You must hire a different divorce lawyer and file a divorce petition in court as if the collaborative divorce negotiations had never happened.

https://azmediator.com/collaborative-divorce-arizona/

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