Mediation and Alternative Dispute Resolution


In California, courts are not the only forums to resolve disputes. In fact, traditional litigation in court is often the more expensive approach both financially and emotionally. Further, the court is built on an adversarial system that often exacerbates a difficult and highly charged process. In response to this problem, many alternatives to traditional litigation have developed. Many of these forms of ADR (Alternative Dispute Resolution) are very suitable for divorce and other family law matters. Mediation, collaborative law, and private judging are the most common forms of ADR in family law.

Divorce Mediation

Mediation is when the parties, with or without the assistance of counsel, work with a neutral person called a mediator to discuss the resolution of their issues. The mediation process offers parties almost instant access to sit and discuss solutions. If not completed in a single session, because some information is missing, the mediation can adjourn and commence at a later date when the missing facts or information are known. Couples who choose to mediate their divorce experience less acrimony and expense as they control the pace of their matter. They also maintain greater control and can explore more creative ways to resolve the dispute. The courts are limited to the powers granted by the Legislature and any decisions must follow the State’s statutes and case laws, often resulting in orders neither party fully agrees with. However, in mediation, the parties can agree to deviate from such a rigid structure to explore resolutions that fit them and their family’s unique needs. Further, mediation is significantly faster and less expensive than a court litigated case.

Collaborative Law

Collaborative Law can best be described as a method of practicing law in which clients have separate attorneys but work outside of the courtroom to resolve their matter. The mediation attorneys from both sides agree to assist the clients to resolve conflicts by employing cooperative techniques rather than adversarial strategies and litigation. Collaborative Divorce is best if both sides agree to work together, but feel they need their own attorneys to help them do so. All the documents prepared for a collaborative divorce as well as all the matters discussed during the process are confidential. This option may be more costly than mediation because both sides must hire their own attorney. In the end, attorneys prepare the Judgment which, when signed and filed with the court, becomes an enforceable court order.

Private Judging

In situations where the parties simply cannot agree and all discussions simply fail to reach a conclusion, someone with power needs to make the call. In court, the judge makes those decisions and for parties who cannot resolve their issues must wait their turn to be heard by the judge. Waiting adds expense and can cause a case to linger for much longer than necessary. To avoid this, parties can hire a retired judge to act in the capacity of a privately appointed judge to hear the case just as if it were happening in court. Two major benefits of private judging are that your matter has the full attention of the private judge and your case can be heard without interruptions or distractions that always occur in a public courtroom. This often equates to significant savings.

You can also use a retired judge or another person of your choosing to act as an arbitrator and assist with resolution. The arbitrator is given the authority to decide an issue by agreement of the parties. Arbitration does not have to include all the formalities of normal litigation once again potentially producing significant savings.

You should be able to discuss the potential of any of these forms of ADR with your attorney to determine if any of them provide a better fit for your family’s needs.


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