There are multiple options available to every person facing a dissolution of his or her marriage. When immediate court orders are not a necessity, and there is no apparent need for protective orders, alternate dispute resolution proceedings can provide parties with a viable means of resolving by agreement (rather than litigation) all the issues that arise during their marital dissolution action.
Voluntary mediation is the traditional alternate dispute resolution method. It provides parties with a chance to make their own agreements and solve their own problems. The process is confidential in nature, and that confidentiality is protected by law.
The mediator's primary role is to create a setting in which the parties can find common ground and reach agreement. The mediator acts simply as a neutral overseer attempting to bring about and seal a meeting of the parties' minds; he or she does not act as a decision maker. Notwithstanding the autonomy mediation affords, it is essential parties be represented by separate counsel to protect the finality of any agreement they ultimately reach. This is so that it can never be said by one party that he or she did not fully understand the process or the agreement. Indeed, an agreement, once it becomes the judgment of the Court, can be set aside within six months upon a showing of mistake, inadvertence or neglect. However, having each party represented by separate counsel when the underlying agreement is entered into usually will protect against such an attack.
Another alternate dispute resolution process used in family law cases is collaborative law. In a nutshell, the collaborative law process is a non-adversarial group effort to reach an agreed-upon resolution of the issues without court involvement. Lawyers, accountants, therapists, forensic experts and any other professionals engaged by the parties to assist them must agree in writing to use their best efforts and make a good faith attempt to resolve disputes related to the dissolution action. If an impasse is reached or either party desires to withdraw from the collaborative process and return to regular court litigation, new attorneys must be retained.
The collaborative law process is confidential with one exception: Reports prepared by experts during the process ultimately may be used in court if necessary. This exception exists to assist parties in saving money and possibly relieve the emotional distress that could occur if the parties or their children had to endure a second expert evaluation.
Despite the potential advantages over traditional litigation, neither mediation nor the collaborative law process should be chosen merely as a cost-saving device. The costs attendant to any family law case primarily are controlled by the parties and their behavior. Each dispute resolution option, including traditional litigation, offers potential benefits and burdens. Thus, it is important to think about these various approaches and decide what is best for you.
At Murphy Family Law, we offer both voluntary mediation and traditional litigation options, as well as limited scope representation to parties engaged in the mediation process.