Divorces are rarely so disputed that they end in litigation. In fact, there are several ways that a disputed divorce settlement can be resolved without the very public, stressful and expensive need to go to court. Alternative dispute resolution, or ADR for short, is a preferred alternative to litigation in Massachusetts when two separating spouses cannot resolve their differences amicably between themselves. This article helps to explain just what ADR is all about and what method may be suitable for settling a disputed divorce.
What makes divorces sometimes so acrimonious?
When two people who have been married decide to divorce, the two main causes of a dispute are the division of shared marital assets and how children should be cared for after separation.
The longer the marriage, the more likely there will be a greater amount of shared assets accumulated, including the family home and other property. It can often be hard deciding just who should get what share of these assets when a divorce is on the cards. Should a home be sold and the amount obtained divided equally between the two spouses? Did the two spouses share bank accounts and other assets equally? Did one spouse earn less or nothing while the other earned a living from a job or a business? How does that affect how the assets are shared? Did one or the other inherit anything while the marriage was ongoing?
The more children a couple has and the younger they are, the harder it might be to decide how they are cared for after the divorce. Should they live with one parent only or should the children’s daily needs be shared between the two parents? What about visitation rights, weekend and vacation time? Should one parent contribute spousal and/or child support?
Ideally, these decisions should be made by the two spouses together, but it can help to have some sort of outside assistance from professionals. That’s where alternative dispute resolution comes in.
As far as ADR for settling disputed divorce settlements is concerned, there are three main ways that can be pursued. These are facilitation, mediation and arbitration in ascending order of formality. Facilitation is the simplest and least formal form of ADR, while arbitration is the most formal. If none of these methods appears to work, then and only then might litigation be pursued, but in a divorce settlement this should be avoided as much as possible. Litigation through the courts can cause a lot of bitterness and resentment. The process may be difficult to forget even if settlement is finally reached and in any case it will be hard to conceal the proceedings from the public if litigation through the courts is pursued.
Facilitation – ADR in Massachusetts
Facilitation is the simplest form of ADR and is used when the two divorcing spouses really want to settle their dispute and are prepared to listen to a third party, the facilitator. The facilitator is a person who listens to each spouse and is preferably a totally neutral figure who has no personal relationship with either spouse.
Facilitation usually involves telephone contact, email and written correspondence, rather than face to face meetings with the two spouses. The facilitator has no binding role in any final settlement but is simply there to help the two spouses come to a mutually agreed settlement between themselves. Note that it is still advisable for any agreed divorce settlement to be formalized in a legal agreement, signed by both parties.
The Probate and Family Law Court can help to ensure that a facilitated agreement is made. In some cases, a judge at the court may act as a facilitator if the court is approached for help with a settlement. A family law attorney can help spouses with the wording used in a mutual agreement made to decide what happens when they divorce.
Mediation
Mediation is a step up from facilitation, but is still relatively informal. The mediator is an impartial go-between, who attempts to help the two spouses come to a mutual agreement on their divorce settlement. The mediator arranges for face to face mediation sessions or arranges to “shuttle” between the two spouses, helping them to communicate with each other.
The mediator is generally more pro-active than a facilitator, offering possible solutions to each side in the mediation sessions. However, the final decision is still left to the two spouses, this being the best solution to any type of dispute.
Arbitration
Arbitration is the most formal type of ADR available and is a step below litigation. The decision made by an arbitrator is usually binding, so is taken out of the hands of the two spouses. In Massachusetts the spouses may choose between a binding or non-binding form of arbitration. The arbitrator’s decision may be disputed in non-binding arbitration, but this is only done if the two spouses are open to pursuing their dispute through litigation as the only other choice.
The disputing parties choose arbitration when facilitation or mediation has failed to achieve a settlement or when the dispute was more serious and the two spouses felt they needed someone else to make the decision for them.
The advantage of arbitration rather than pursuing the dispute through the court is that is far less expensive and less public, so a decision can be made without the potential emotional and psychological impact that a drawn out court case might cause.
During arbitration, the arbitrator, who is appointed as someone with experience in resolving family law disputes, listens to each side and examines any evidence that they may bring to the session which they consider backs up their case. The arbitrator may ask questions and request further clarity or evidence before making a final decision. Generally, arbitrators cannot make decisions about child support as this is the preserve of the Probate and Family Law Court, which makes a decision in the best interests of any children who are not yet old enough to be able to live independently.
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