Alternative Dispute Resolution: Divorce without Contested Litigation in the Massachusetts Probate & Family Court

Family law disputes such as divorce, child custody, visitation, spousal support are often emotional and can be stressful. When two parties cannot agree, they may believe taking their case to court is the only option. However, litigation is expensive and can be a very lengthy process. Additionally, the courtroom environment empowers the judge to make decisions instead of allowing the two parties involved to decide what is best.

Alternative Dispute Resolution methods provide viable alternatives to litigation and these options often allow the parties involved to determine what works best rather than leaving decisions up to a stranger. Consider these effective alternatives.

1.    Mediation: A productive way for each party to discuss, debate and decide for themselves the issues that are important to them, including child custody, financial support and property division. A professional mediator is a neutral facilitator who helps the parties communicate so they can reach resolution. Through a series of sessions, the mediator helps the parties negotiate an agreement that they have crafted.  The mediator then will draft a formal document outlining what was agreed upon. That document, known as either a Separation/Settlement Agreement, will then be submitted to the court for approval. A Divorce or Judgment cannot issue until the Agreement is approved by a judge. Since a mediator cannot give legal advice (even if the mediator is an attorney), it’s often recommended that both parties separately consult their own attorney to discuss their individual rights and the consequences of certain decisions within the agreement reached through mediation.

2.    Arbitration: A neutral person or arbitrator hears arguments from both sides and makes a decision based on the evidence presented.  It is a less formal procedure than Court litigation and the rules of evidence are often relaxed.  Arbitration can be binding on the parties (meaning no appeal of the decision is permitted).  The process is less expensive than court litigation and often can be finished more expediently given the volume of cases before the Court.

3.  Collaborative Law: Another option is to ask your family law attorney if he or she has training in collaborative law. The collaborative law process is a respectful team oriented methodology in which both parties have their own specially trained attorneys who provide representation while agreeing to an open process and to resolve all issues short of litigation. In fact, both parties agree that if either party decides to go to Court before there is an agreement reached, both parties must retain different counsel and none of the discovery exchanged can be used in the litigation.  This restriction motivates everyone involved to continue working toward a mutually acceptable resolution of all issues. The process involves a series of meeting at which a neutral party called a divorce coach is present at all meetings to help manage the process in a respectful manner.  It also often involves jointly retained neutrals such as a financial person or a child specialist.  Collaborative Law involves goal based rather than position based negotiation.  The difference is that in position based negotiation, a party might say they want the house.  In goal based negotiation, a person might say their goal is to have a safe & financially secure place to live. With the former, it is harder to reach a compromise because it usually means changing your position.  In the latter, it is easier from the start because there are many different means to reach that goal other than staying in the marital home.

4.     Neutral Evaluation or Conciliation:  A neutral person with expertise in family law hears limited or abbreviated arguments, reviews  limited documentation, reviews the strengths and weaknesses of each side’s case and offers an evaluation of likely court outcomes in an effort to promote settlement.  Conciliation often occurs during the Court process when the Judge believes that it will help resolve a case that is not settling even though it should easily do so.  The neutral evaluator or conciliator may also provide case planning guidance or settlement assistance.

5.   Parenting Coordinator:   A child-focused process in which a trained and experienced mental health or legal professional assists high-conflict parents in resolving child-related issues.  In Massachusetts, the Courts cannot Order the appointment of a Parenting Coordinator unless the Parties agree.  The Parenting Coordinator may have full or partial binding authority to make changes to the parenting plan or may simply act more like a mediator in helping the parties learn to better communicate so that they can resolve disputes and better co-parent.

Whatever means of resolution you decide, it’s important to understand your options and seek the guidance and advice of an experienced professional such as a mediator, attorney, or parenting coordinator.  For more information on alternative dispute resolution, please contact Berid & Schutzbank.

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