Divorce Law - Your Family Lawyer Should Explain The Settlement Process To You

There are two types of divorce attorneys out there - those who care about you and those who don't

. The attorneys who don't care about you care mostly about the money you are giving them. The ones that do care about you take the time to invest in your future.

A good way to find out if your family attorney cares about you and your life is to ask him or her about alternative dispute resolution (ADR). Many attorneys, though it would behoove them to explain all options to their clients, either completely ignore or gloss over the various methods of resolving a case.

1) Types of Alternative Dispute Resolution.

Mediation. During mediation, the parties attend sessions with a neutral third party who will help them to resolve the issues in the case. The parties can agree to attend mediation either with or without their attorneys. It is usually in a calm environment where the parties can present their side of the story to the mediator, who will then assist them in making decisions. Mediators have different styles - some give their advice along the way and some simply allow a forum for the parties to discuss.

Arbitration. Arbitration is when the parties agree that they will attend a session, or multiple sessions, with a third party (often a divorce or family law attorney) who will make a decision on the issues presented. Evidentiary and procedural rules generally do not apply during an arbitration. There are two kinds of arbitration, binding and non-binding. Binding arbitration is when the parties agree beforehand that they will be bound by the arbitrator's decision. Non-binding arbitration is when the parties agree beforehand that they don't necessarily have to comply with the arbitrator's decision.

Settlement negotiations. Attorneys can and should encourage their clients to negotiate settlement, even while the court case is taking the litigation track. In most jurisdictions, settlement is allowable up until the fact finder (usually a Judge) renders a decision. In most cases, the issues can either be fully resolved or at least narrowed down through constant communication between the attorneys about the respective positions of their clients. Even as more information is gathered through the discovery process, these discussions can become more fruitful.

2) Why choose ADR?

Less worry. Going to trial is extremely stressful. Alternative dispute resolution offers a much less stressful method of resolving the issues without going to trial. The parties can worry about the things that really matter to them, rather than worrying about what someone who has never met them or their children might decide.

Fewer dollars. Attorneys are not cheap. Some charge upwards of $1,000 per hour, or more. For that reason alone, going to trial can be expensive. ADR, if done early and correctly, can save a lot of money for the people that worked so hard to save it. Even if the case is settled on the proverbial courthouse steps, the parties save the money that would otherwise be spent on trying the case.

More options. Usually, the parties in a divorce can agree on things and put them into a settlement agreement that the court may not have the authority to order. For example, in some states, the court cannot order the parents to pay for the college education of their children; however, the parties can agree to provide for college education in a settlement agreement, and the parents will have to abide by that agreement.

The court does not make decisions for you. The bottom line is that parties do not want a Judge who has never met them or their children, and certainly did not live through the marriage, making decisions that will affect the rest of their lives. Through ADR, the parties are in control.

Relationship between the parties. Believe it or not, even though the parties' marriage didn't work out, they can still have a meaningful relationship. This is especially important if there are children involved. Resolving the issues through ADR rather than through trial is an important first step in that regard.

The truth is that most cases settle. But the sad truth is that most settle late in the game or on the eve of trial. This can be avoided with planning and hard work from both the attorneys and clients. It is a shame that sometimes, while the clients are willing, the attorneys only care about themselves.

by: Demitri Dopolous.

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