Ask Attorney Jennifer B.: What’s an alternate dispute resolution? Should I recommend it to my clients?
During the initial stages of the pandemic, many court systems shut down causing delays for those in the midst of divorce. Some courts adapted quicker than others which created a backlog in the system. Moreover, after sheltering at home together many couples came to the unfortunate realization that they no longer wanted to remain together. They understood that life is unpredictable, and it was unwise to wait for things to improve. As such they decided to divorce, causing more cases to flood the system.
We are now post-pandemic, living in our “new normal,” and court systems are back up and running with a newfound ability to pivot to remote hearings when possible or when necessary for the sake of efficiency. Unbelievably, four years after the pandemic there is still some backlog. And people are still willing to move forward with divorce when they realize that their marriage is no longer working. Many divorcing couples, however, do not want to wait for their case to wind through the court system, and they don’t want to incur the fees associated with protracted litigation. As such they are looking for other ways to resolve their divorces.
Alternate dispute resolution (ADR) methods existed pre-pandemic, but their use really exploded during the last four years when people who wanted to divorce were forced to resolve their differences in some other way, as the courts were unavailable. Moreover, the development of technology made these ADR methods even more attractive since parties could participate without ever leaving home.
When we think of ADR in the context of divorce, we most often are talking about mediation, which is not binding. There is also binding arbitration which is a bit more like traditional litigation, however, instead of waiting to go through the court system, the parties agree that a third party, usually a lawyer or retired judge, will make the decision in their matter.
Needless to say, it is always best for parties in the midst of a divorce to reach an agreement rather than to let a third party decide what is best for them financially (or even with respect to parenting their children). This allows the parties to retain control over the outcome of the situation. Using ADR can also give parties a bit more control over the pace in which their divorce can be resolved, and in many instances ADR methods are less formal than traditional litigation through the court system.
Although solving many divorce cases is plausible with ADR, these methods are not best for every case and ultimately they may not always be less expensive. For example, mediation, by its nature, requires parties to reach an agreement. Clearly, if the couples could agree, they probably would not find themselves going through divorce in the first place. Moreover, if they are amicable and focused on reaching an agreement, they may not even need the services of a mediator and could simply resolve their differences with the use of their respective counsel. With respect to arbitration, some couples prefer the formality of the court process and would rather not have a hired third party decide their matter.
By its nature, ADR methods usually require the payment of another person in the case, i.e. the mediator or arbitrator, and thus if the matter is not resolved quickly, it may be more costly in the end. This is especially true with regard to mediation, because if the matter is not resolved, the parties must start anew taking their case through the court system after having already spent time and money trying to resolve their case through ADR.
Nonetheless, and despite the few potential downsides, in the right situation, using ADR can help couples resolve their divorces fairly quickly and easily and with less animosity and expense than traditional litigation. As lawyers, it is important that we advise our clients about ADR and help them determine whether it is worth exploring.
With more than 25 years of experience in the industry, Jennifer Brandt’s practice includes all aspects of family law including divorce, custody, support, alimony, adoption, and guardianship matters in both Pennsylvania and New Jersey. In addition to family law litigation, she also negotiates prenuptial, post-nuptial and cohabitation agreements on behalf of clients. In addition to her busy practice, she’s a well-known legal commentator on national news networks including CNN, CNN Headline News, Fox News Channel, MSNBC, ABC News, Court TV and local and regional television and radio.
If you have a family law issue or would like her to speak about legal issues, you can connect with Ms. Brandt at www.cozen.com.
