Starting your divorce process without legal counsel is like biking without a helmet or going to a movie without popcorn — people do it, but it seems a little strange. Always have initial consultations with a lawyer. However, there are ways to avoid ugly court trials by utilizing either mediation or arbitration.
In mediation, a neutral facilitator will help you and your spouse discuss needs and wants. The goal is to reach a mutually acceptable agreement without going to trial. The process is confidential. Do not assume the mediator, who may or may not be a lawyer, has any legal knowledge. In some states, mediation is unregulated and without any required standards or training.
In arbitration, the divorce case is presented to a neutral party called an arbitrator who – like a judge – has the power to decide what should happen in the case. Arbitrators may be matrimonial lawyers or former judges but in any case, they should be familiar with the law. The arbitrator has power to compel decisions over the objection one or both parties. The decisions may be either binding or non-binding. If binding, parties are usually bound by the decision until you can prove the arbitrator was really biased, made a gross error of law or exceeded the arbitrator’s authority. A non-binding decision may be appealed, but if the end result is the same as the first decision or more favorable to the other spouse, the spouse who appealed may be ordered to pay the other’s costs.
Many states now require you and your spouse to participate in mediation, arbitration or some other form of alternative dispute resolution before a judge will hear the divorce case. Usually you will have to pay for the services, but in some states, the court provides mediators at no cost. In any case, resolving your conflicts without going to court will cost you less money and be easier on your emotions. Here are some tips to consider when evaluating mediation and arbitration options:
- A mediator helps you and your spouse to reach an agreement but has no power to enforce it.
- An arbitrator acts like a hired judge but may or may not be a lawyer. An arbitrator may also enforce an agreement.
- Women are less pleased with a mediated divorce settlement because usually they have less money and power.
- If the court requires mediation, opposing it may anger the judge and prejudice your case.
- Mediated agreements may be harder to alter than court decisions.
- Abusive or controlling spouses often fail to bargain in good faith or to live up to any fair agreement reached in mediation.
- Go prepared into either mediation or arbitration.