by Sarah Bania-Dobyns

Created on: January 02, 2011

As a couple preparing for a divorce, depending on which state you live in, you may not have a choice regarding whether or not to pursue alternative dispute resolution. This is because it is quite common in family law to require alternative dispute resolution before appearing in court. If you and your (ex-)partner do not know whether or not you have a choice, call the county court commissioner.

Let's assume, then, that you must pursue alternative dispute resolution before you appear in court to be divorced. That still leaves you with options: mediation, arbitration, and collaborative law. Some dispute resolution centers will also offer an option called a "settlement conference," which is a form of mediation in which the mediator is required to be a lawyer. I will explain the differences between mediation and settlement conference mediations, and when it is beneficial to pursue each in the case of divorces. Arbitration and collaborative law are subjects for another article.

The typical mediation is "facilitative." This means that the mediator acts as an impartial third voice who helps you, the parties, guide the negotiation in the most beneficial way for you. Ideally this will mean asking questions that help you come up with your own solutions in collaboration with the other party. The mediator will give you time to set an agenda, and then help with staying to your agenda so as to problem-solve your dispute. So, in other words, the mediator leads the process so that you can lead the content of the negotiation.

In a settlement conference, all of this true and the mediator has legal expertise which allows the final agreement you arrive at to be recognized by a court. While mediation agreements are always legal documents, in many cases the court  (or a lawyer) has some work to do to translate the terms of the agreement into the language that the court needs. In a settlement conference, these steps are erased because the mediator is also a lawyer. This can be advantageous in cutting out legal fees for you. But it also means that care should be taken in coming to a final agreement.

So which should you pursue in a divorce? It depends how ready you are to come to an agreement, whether you have your own lawyers who will you draw on anyway, and how prepared you feel to be in the same room talking to one another. A good mediator will talk over these questions with you and help you decide.

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