Mediation, Collaborative Settlement, and Arbitration

Deborah Throm discusses your options for settling your case out of court.

Mediation, Collaborative Settlement, and Arbitration Transcript

Hi. I’m Deborah Throm.

If you’re like many people facing the end of a marriage, you may be feeling as if you have little or no control over how you and your spouse will go about making the decisions that need to be made. I want you to know that you and your spouse have the ability to choose how you will go about reaching an agreement. In this segment I will tell you about three options available to you. I will provide an overview of mediation, collaborative settlement, and arbitration.

You may have listened to other segments on this site and heard about the important decisions people need to make regarding children, property, and finances. You may also recall hearing that spouses either agree about those things or they have to go to court to have a judge decide for them. You may have heard or read on our site that the majority of parties resolve their disputes in settlement.

What you may not realize, however, is that the process utilized varies greatly, both in substance and outcome. In fact, direct negotiations between attorneys, as well as the court-directed outcomes, tend to focus exclusively on what the law provides as a solution. In many cases, those cookie-cutter solutions do not meet the needs of either party. Worse yet, one-size-fits-all solutions certainly do not begin to meet the complex needs of families and fail to set the stage for successful co-parenting relationships and lasting agreements.

Since the end of a marriage is more than a legal event, in that it involves financial and emotional changes that impact the whole family, it makes sense to choose a process that actually deals with all of the legal and practical concerns. It is this reason that I believe one of the most important decisions that you will have is how you will go about making the decisions you need to make.

What type of negotiation and dispute resolution options will you and your spouse consider? How will you choose to communicate with your spouse at the very early stages of your decision to separate? You have the ability to guide your negotiations towards a process that considers not only the legal matters but also addresses what matters to you, according to your values and concerns, and how those impact the financial and emotional changes you, your spouse, and your children will experience.

Mediation is one of the most common options for dispute resolution. This option is often misunderstood, in part because there are a variety of different ways to use mediation within both negotiated settlements and as part of an active litigation. Mediation is managed by a third-party neutral. They are not a decision maker and cannot give either party legal advice.

A mediator is not a substitute for having your own lawyer. The mediator’s role is to facilitate communication between you and your spouse to help you reach an agreement. The lawyer’s role is to make sure you know your legal rights and obligations and to help you understand the legal consequences of the decisions that you make.

One of the benefits of mediation is its flexibility. You can begin mediation at any time. You can utilize mediation in both court, settlements, and in litigation. In fact, when a lawsuit is filed in North Carolina, we have mandatory mediation programs for custody disputes. And many counties have begun to mandate mediated settlement conferences for financial issues.

Some of the challenges presented in mediation result from a power imbalance between the parties. It is not uncommon for one spouse to be more assertive than the other spouse, or for one spouse to have a superior bargaining position. When this occurs, the other spouse may feel taken advantage of and this often leads to unsuccessful negotiations.

Additionally, mediation agreements reached without each party understanding their legal rights can result in failed negotiations, broken agreements, and the tendency to move to an adversarial negotiation.

The second option I want to tell you about is the collaborative settlement process. The collaborative settlement process is a comprehensive out-of-court settlement process that gives the parties control over how they make decisions, including how they resolve differences and reach negotiated solutions. Each party is represented by their own lawyer. The parties meet as a group to discuss individual concerns and have committed to work together to reach an agreement that is acceptable to both parties.

What makes collaborative different from other out-of-court settlement options? The parties and their lawyers sign a collaborative participation agreement that requires keeping the kids’ interests as a priority, full disclosure, no court at all, meeting in group sessions, and the use of a neutral — or other neutral professionals as opposed to both hiring their own expert.

Outside professionals may include child specialists, CPAs, and other financial professionals as needed. The parties are advised about the law but have the freedom to make decisions that make sense to their individual circumstances. Additionally, many participation agreements include the option of bringing in a mediator to help resolve any problems that cannot otherwise be resolved within the group.

One of the main complaints about this process is that a collaborative lawyer is prohibited from representing the person in court, should the collaborative process fail. Since most cases result in settlement no matter what process you employ, it seems that this fear is less than compelling and should not stand in the way of you considering this option.

The third option I want to tell you about is arbitration. Arbitration is an option that involves a third-party neutral called an arbitrator. Arbitrators, unlike mediators, act like a judge, as they hear testimony, take evidence, and issue actual binding decisions. This option is more like an informal trial. This process can be helpful to those who have reached an impasse in mediation or other types of negotiations. And rather than filing a lawsuit and litigating a case, the parties can submit one or more unresolved issues to a trained professional. The parties will get a final decision without the added pain and expense of preparing for and participating in trial.

The main challenge this process presents is that the parties lose complete control of their outcome. Unless the parties agree otherwise, the final decision is binding.

I hope that this segment about mediation, collaborative settlement, and arbitration has been helpful to you. Remember, you and your spouse have the ability to control how you go about making the necessary decisions brought about by the end of your marriage.

Take a look at the other videos available on our website at Rosen.com. They are terrific resources for helping you decide how to proceed with your case.

Thank you for watching. I’m Deborah Throm for the Rosen Law Firm.


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