Choose Your Process Wisely
Once you have made the decision to move forward with a divorce and selected your highly skilled attorney, a member of the American Academy of Matrimonial Lawyers, you must decide on the process that is most appropriate in resolving your matter. There are various options available to you. This article is intended to give you an overview of the options so that you may have a further discussion with your attorney.
Visualize a spectrum with one end of the spectrum being litigation and the other end of the spectrum being a “kitchen table settlement”. Arbitration is the process closest on the spectrum to litigation. Mediation and collaborative law are in the center of the spectrum.
A fully litigated case is one in which a judge makes a determination. The decision is rendered after a formal presentation of witnesses and evidence at a trial. You give up the right to self-determination. The trial is held in an open court room.
Arbitration is similar to litigation in that the facts and evidence are presented to a trained arbitrator who makes the ultimate decision. Often parties choose the arbitration process over litigation, as you are able to select your arbitrator and agree upon the details of the process which, unlike litigation, is confidential. If electing arbitration, seek out an arbitrator who has been trained by the AAML.
Mediation is a process in which a neutral mediator works with the parties to assist them in reaching a resolution. Mediation may occur with or without attorneys. A truly qualified mediator will make certain that the parties have independent counsel. Since the mediator is a neutral party, the mediator cannot offer legal advice to the parties, prepare a Marital Settlement Agreement, or obtain a Final Judgment of Divorce. It is essential to be represented by an attorney when engaging in mediation.
Collaborative law is the latest addition to the options, with the New Jersey Family Collaborative Law Act being signed into law on September 10, 2014. It is a holistic, non-adversarial approach that is designed to address the legal, financial, and emotional components of a divorce. The parties sign a participation agreement indicating that they will not litigate and will cooperate in working toward a resolution. Sometimes it is necessary to include other team members such as accountants and divorce coaches.
A thorough discussion with your attorney of the available options is essential so that you may choose your process wisely.