For those facing divorce, they might feel a lot of uncertainty. The following information is provided to help your clients make informed decisions about what type of divorce process might be best for all of the parties involved.
What is Divorce Arbitration?
Arbitration is one of the many processes used to resolve disputes between divorcing parties. It is often used when couples have reached an impasse or stalemate in their divorce negotiations and wish to resolve the issues without going to court. Divorce Arbitration is a type of divorce trial, but instead of couples resolving their dispute in a public courtroom, their case is heard in a private setting before an Arbitrator. This setting is called an arbitration hearing and is scheduled at a time and place convenient to all parties, unlike a court trial, which is scheduled subject to a trial judge’s availability.
In Divorce Arbitration, the divorcing couple and their respective attorneys choose and agree upon an Arbitrator. The Arbitrator is then presented with the specific issues preventing resolution. In Arbitration, divorcing couples may also define what procedure will be followed and how long the Arbitrator will have to render a decision. After a hearing, the Arbitrator renders a decision, called an award, on the specific disputed issues. Unlike a court trial, the Arbitrator’s Award, in most cases, cannot be appealed. Divorce Arbitration can be used in connection with the Adversarial process where the arbitration takes the place of an in-court trial or, in Collaborative Divorce or Divorce Mediation, when an impasse has been reached.
Benefits of Divorce Arbitration:
- Divorcing couples select the Arbitrator who will decide their issues.
- Divorcing couples have the option to select an Arbitrator who has specific experience in an area of interest, for example, taxes, real-estate value or management, etc.
- Divorcing couples define the specific issues to be addressed by the Arbitrator.
- Divorcing couples pick the day, time, and location of their hearing.
- Divorcing couples enjoy privacy, confidentiality, and a less formal setting in Arbitration, while avoiding the time, expense, and emotional distress associated with a trial in court.
What is Divorce Mediation?
This type of Mediation allows the spouses to negotiate directly with one another with the help of a mediator. A Mediator does not have the power to make decisions like a judge or arbitrator; instead the Mediator guides the spouses to a divorce agreement that is acceptable to both parties. The Mediator concentrates on determining each party’s “interests”, as opposed to “positions” or “entitlements”. For example, one party may feel entitled to the family van. However, their spouse wants the van to start an income producing home-based business. The first party, realizing that they may pay less support if their spouse has an income, may give up the van. Here, one party has the basic interest of being a self-employed income earner and the other party will benefit from that interest.
The Mediator will usually meet with the parties in a conference setting at least once; there may then be individual meetings between a spouse and the mediator. Sometimes, divorcing couples reach an impasse or cannot come to resolution through Mediation. In that case, they may choose to convert to traditional divorce, or use divorce arbitration for remaining unresolved issues.
Benefits of Divorce Mediation:
- Divorce Mediation saves the cost, time, and emotional distress associated with traditional, “adversarial” divorce.
- Divorce Mediation fosters open communication, encourages respect, and helps to protect future working relationships between future former spouses.
- Mediation focuses on problem solving and the resolution of issues from a client-driven and client-controlled perspective.
- Mediation focuses on the best interests and concerns of each spouse and children.
Important Considerations in Divorcing Options:
- By law, a Mediator cannot give legal advice.
- During Mediation, an attorney for a spouse acts in an advisory role, not as an advocate.
- During Mediation, a spouse’s attorney need not attend every Mediation session.
- Each spouse should have an attorney who is experienced in the practice of Mediation. Not all divorce lawyers are experienced or able to work well in the non-adversarial Mediation format.
- Unlike Divorce Mediation, where a Mediator assists a divorcing couple in seeking resolution, in Divorce Arbitration an Arbitrator makes the final decision, much like a judge in court. This can be helpful for couples that have reached an impasse on a specific issue, such as who will pay for a particular expense.
Anthony C. Adamopoulos is a member of the Massachusetts Dispute Resolution Services (MDRS) Neutral Panel, where he is available for Mediation and Arbitration of civil and divorce matters. He has over 25 years of experience and has received specialized arbitration training from the American Academy of Matrimonial Lawyers, the American Arbitration Association, and the Chartered Institute of Arbitrators. He is a graduate of The Center for Dispute Settlement, Washington, D.C., where he received Advanced Mediation Training. Attorney Adamopoulos has also completed Harvard Law School’s Program of Instruction for Lawyers – Mediation Workshop, Negotiation Workshop.
Please contact MDRS at 800 536-5520 to schedule your divorce mediation or arbitration with Attorney Adamopoulos.