ALTERNATIVE DISPUTE RESOLUTION

At first, Colorado courts encourage divorcing couples to attempt to resolve their issues outside of court. The most common settlement approaches are through mediation, arbitration, a settlement conference or early neutral assessment. Alternative dispute resolution advantages are numerous, especially for those who want to settle their divorce outside of court.

At Litvak Litvak Mehrtens and Carlton, we handle all manner of divorce cases. This includes high asset divorce, property division, and more. No matter how complex your case may be, our years of experience as Denver divorce attorneys will speak for us. Whether you’re looking for a mediator or for someone to represent you in court, we’ve got you covered. To arrange a consultation with us, please call 303-951-4506 today, or fill out our online intake form.

What Is Alternative Dispute Resolution (ADR)?

Not all divorces must be litigated in court. A divorce can be settled in a variety of ways. This includes informal discussions between you and your spouse, out-of-court alternative dispute resolution processes that tend to encourage a constructive settlement, or regular court proceedings. The great majority of divorces are settled without the need for a judge or jury. Many use alternative dispute resolution (ADR) methods including, mediation, collaborative family law, and arbitration.

For example, an increasing number of couples are turning to mediation to resolve marital dissolution difficulties. And, as mediation has grown in popularity, divorce attorneys’ roles have evolved from not only defending clients in court battles to also working as divorce mediation lawyers, assisting clients in achieving mediation success. Attorneys can now function as lawyer coaches, legal consultants, and legal advisers during the divorce mediation process in this new capacity. At Litvak Litvak Mehrtens and Carlton, we excel in all manner of divorce settlement processes. If you need a mediator, we can provide that. And if you need a staunch advocate in court, we can provide that, too.

Types of Alternative Dispute Resolution

Going through a divorce may be exhausting, and the legal procedure can only add to the stress you’re already experiencing. You may be able to sort out child support, child custody, alimony, and property distribution issues without going to court if you utilize an alternative dispute resolution (ADR) technique.

Alternative dispute resolution is a low-conflict approach to resolve any issues that you and your spouse must resolve before a court can approve your divorce. There are numerous different types of ADR methods that may be designed to fit your unique needs – all of which can help you resolve your marital problems quietly, amicably, and without resorting to litigation. Below, we list the most common types of alternative dispute resolution.

Mediation

Mediation is one of the most frequent forms of alternative conflict settlement. When you mediate your divorce, a neutral third party will assist you in reaching the necessary concessions and will lead the settlement conversation. A mediator can help you not only resolve your conflicts, but also create communication techniques that will help you build a strong basis for a healthy co-parenting relationship.

When parties opt to mediate their divorce, a skilled mediator is usually engaged to help them communicate effectively. Although some mediators are lawyers, they do not give legal advice or take sides during these meetings. Having your own attorney is not required when mediating your divorce, but it is strongly advised that you contact one to better understand your legal rights.

Settlement Conferences

A divorce settlement conference is not the same as going to court. It’s an opportunity for you and your spouse to sit down, discuss the difficulties in your case, and work together to find a solution that benefits both of you. A voluntary conference is a structured settlement negotiation with or without attorneys that takes place in an organized atmosphere. You and your spouse can decide whether or not to invite attorneys to the settlement meeting. An attorney can assist you in expressing your concerns and ensuring that your rights are protected. If a judge orders a forced settlement conference, it may take place in a courtroom under the supervision of a judge or mediator.

The goal of a divorce settlement conference is to enable both parties to express their issues, expose their grievances, and find common ground. The presence of attorneys can help to keep the dialogue courteous, focused, and on track toward a common goal. Attorneys can help you and your spouse have a more fruitful talk if you don’t think you or your spouse can be courteous. If you and your spouse reach an agreement on all aspects of the divorce, it is a successful settlement. During a settlement conference, a judge will usually sign off on the deal you and your partner reach.

Early Neutral Assessments

The process of identifying the issues in a dispute, considering settlement possibilities, and assessing the merits of the claims is known as early neutral evaluation. Early impartial evaluation aims to enhance dialogue between conflicting parties and serve as a bit of perspective for everyone concerned. During this procedure, an impartial professional evaluates the case’s merits and helps each side to reach a clear understanding of the dispute’s fundamental problems.

The ENE procedure is both private and non-binding, which means that neither side can be forced to make a decision by the impartial evaluator. Everything spoken throughout this procedure is kept confidential. If the parties reach an agreement at the conclusion of the ENE proceedings, they can write it down and present it to the court for approval. The dispute ends when the court confirms the agreement, and the agreement becomes a court order. If the parties are unable to reach an agreement following the review, the matter will proceed through the usual legal process.

Collaborative Divorce

Collaborative divorce can be beneficial for spouses who are dedicated to working together to settle their disagreements — and pledge not to go to court. When couples employ the collaborative process, a team of specialists is put together to help you with different parts of your divorce. A collaborative divorce team may include a financial neutral, a child custody specialist, an accountant, a therapist, an appraiser, and others, depending on the difficulties in your divorce.

In a collaborative divorce, each party has their own attorney who will give legal advice, but the process is not confrontational. However, just because you and your partner agree to engage in the collaborative process does not guarantee a conflict-free divorce. In these situations, a mental health expert may be quite helpful in assisting you and your spouse in achieving your goals.

Arbitration

Arbitration is one of the numerous methods for resolving disagreements between separating spouses. It’s frequently utilized when a couple’s divorce discussions have come to a halt and they want to address the issues without going to court. Divorce arbitration is similar to a divorce trial, except that instead of resolving their disagreement in a public courtroom, couples’ cases are heard in private before an arbitrator. Unlike a court trial, which is arranged based on the availability of a trial judge, an arbitration session is scheduled at a time and place agreeable to all parties.

The separating couple and their respective counsel pick and agree on an arbiter in arbitration. Following that, the arbitrator is provided with the particular concerns that are impeding a resolution. Divorcing spouses can also specify what method will be followed and how long the arbitrator will have to make a judgment in arbitration. Following a hearing, the arbitrator makes a ruling, known as an award, on the issues in question. In most circumstances, unlike a court trial, the arbitrator’s decision cannot be challenged.

Facilitation

The facilitator aids the parties in achieving an agreement, but does not prescribe the terms. He or she assists the parties in evaluating the strengths and weaknesses of their arguments and may provide recommendations for a resolution. The parties, on the other hand, have the power to come up with their own mutually acceptable arrangement. Parties (or their attorneys) may choose facilitators, or the Court may do so through the Office of Dispute Resolution in Colorado. Facilitation, if done correctly, may be a very low-cost method of settling a disagreement.

Is Alternative Dispute Resolution Right for You?

ADR is one alternative for settling any continuing disagreements involving property distribution, child custody, child support, and other issues if you and your spouse decide to dissolve your marriage. Depending on variables such as the degree to which you and your spouse disagree on critical topics and your desire to work together to overcome those issues, ADR may be a useful tool in settling your divorce and related difficulties.

ADR procedures are less confrontational and less formal than typical court procedures, which may promote and ease early settlement. Instead of having a third party (a judge or jury) make such decisions, mediation and collaborative family law allow you and your spouse (with your attorneys) to have an active role in settling crucial divorce decisions.

Arbitration is a more organized ADR alternative in which a neutral third-party makes judgments after hearing both spouses’ evidence and arguments. It is rarely utilized in divorce disputes. In a divorce dispute, the arbitrator’s judgment is not always final, and the parties may be able to address crucial issues before a court at a later date. The majority of out-of-court divorce agreements will require judicial approval.

When determining whether or not ADR is right for you, it is important to understand the advantages and disadvantages of ADR. We cover these topics below.

Alternative Dispute Resolution Advantages

Alternative dispute resolution advantages are numerous. This aligns with the fact that so many more divorcing couples opt for ADR than in previous years. Below, we outline the alternative dispute resolution advantages.

• Objective evaluation: Objectivity is one of the biggest alternative dispute resolution advantages. Presenting the case to an accepted neutral party helps to iron out the issues that you and your spouse feel strongly about.
• Confidential and private: Statements made in the hopes of reaching an agreement are deemed private and cannot be used in court. This implies that if the parties achieve an agreement through ADR but it is not reduced to writing and signed by both parties, the agreement is not legally enforceable.
• Autonomy over the process: The process of ADR allows both parties to determine their own resolution, rather than relying on the judgment of the court. Judges usually know very little about you and your family situation. Therefore, if you prefer to make the decisions about your own family, ADR is a great option for you.
• Familiarity with the neutral party: It is possible to go through ADR multiple times, especially if you do not agree with the outcome the first time. The second time around, you can bring in a neutral party that is familiar with you and your family. This not only saves you the time of explaining the background information, but it also saves you money.
• The right to choose the neutral party: In most cases, you have the option of choosing your neutral for ADR. This is a significant benefit since you may select a neutral with special knowledge of the difficulties in your case.

Alternative Dispute Resolution Disadvantages

Mediation is not the best option for every divorcing couple, and there are certain key aspects of ADR that might be problematic.

• No legal advice provided: If you enter negotiations without the assistance of professional legal counsel, you will be making critical decisions regarding your and your children’s futures that may come back to bite you. It’s crucial to understand the legal implications of these decisions, and going into divorce mediation without legal advice is a bad idea. Your lawyer is not required to attend mediation with you, but he or she can provide you with legal advice outside of the process.
• It isn’t a “one size fits all” process: Mediation is unlikely to be in your best interests if your spouse is vengeful, unable to compromise on any topic, domineering, a bully, or dishonest. The last thing you need is your soon-to-be ex pleading with you to make a deal. A professional divorce lawyer can advise you on whether ADR is the best option for you.
• It might not be necessary: Mediation is unlikely to be required if you and your spouse are ready to work together in honor of your shared years together, as well as in the best interests of your children. Instead, you may save time and money by having your attorneys draft mutually agreeable settlement terms in the correct legal manner.
• If it fails, you still go to court: If your mediation fails, your divorce will take longer and be more expensive than it would have been otherwise.