Alternative Dispute Resolution
California is considered one of the nation’s most progressive divorce states. As the first state in the country to provide for no-fault divorce, it has a long history of allowing couples to choose more amicable, less contentious paths to ending their marriage. There are a number of methods of alternative dispute resolution which provide options to expensive, hurtful and protracted litigation.
Divorce does not have to be synonymous with litigation. In fact, in San Diego, over 90% of filed cases are resolved without trial. In most cases, with professional assistance, the parties reach a settlement prior to trial. While in some cases there are questions of law or “black versus white” factual disputes which require judicial resolution, these are the minority.
One method of avoiding litigation is to use a mediator to help the parties to work their way through the various issues, by advising them of their legal rights and offering a variety of methods for resolving their differences. This often requires the mediator to advise the parties what the result might be if a dispute were taken to a judge for a ruling, and this in turn requires the mediator to be not only a skilled mediator but experienced and knowledgeable of local judicial practices.
At Allen Family Law Inc., we often represent individuals who are going through the mediation process by providing them with legal background and advice and perspective on the various agreements proposed through the mediation process. We also at times serve as mediators, so we are well aware of the sensitivity and skill required to help divorcing couples reach resolution.
Although couples may be determined to avoid the financial and emotional cost of trial, nevertheless they often feel that representation by a knowledgeable and experienced family law specialist is an absolute requirement. Not only do they need guidance through a highly complex area of the law, they need to have confidence that the settlement they are reaching with the other party is in their best interests and maximizes their position to the fullest extent possible.
After all of the facts become known and the parties’ respective positions expressed, the parties and their respective attorneys will meet and discuss the issues. This is known as a “four way conference” and is designed to reach as many agreements as possible. It may take a series of such meetings to reach a conclusion which is acceptable to both parties and their attorneys. These meetings are difficult and require substantial preparation, but the possibility of avoiding trial make the effort worthwhile.
It is our experience at Allen Family Law, Inc. that alternate dispute resolution works best when both parties are represented by experienced and knowledgeable counsel. This puts the parties and the issues on level footing, and avoids the “gunslinger” mentality often exhibited by novice attorneys or those lacking in family law experience.
In a litigation setting, the parties are pitted against each other with a “winner takes all” attitude. It is therefore no surprise that people involved in highly-contested divorces tend to dwell on fault and blame. Instead of thinking to the future, they revisit the past. Achieving resolution by settlement can often reduce or avoid this negative process, which can otherwise seriously damage relationships with children and undermine future settlement prospects.
In some cases, even though both sides have worked hard to settle, there are factual or legal issues which require judicial determination. But divorce cases which end up going to trial are decided by a third party (the judge) who knows very little about the parties and only so much of the case as has been presented in court. Parties who achieve settlement decide their own terms rather than having them handed down to them by a third party. Because they have had some measure of control over the divorce process, they tend to be more satisfied with the results. They also tend to be able to resolve future disputes with their former spouses without judicial intervention.
Finally, litigation is often slow and always expensive. Resolving disputes through mediation or attorney-assisted settlement can be less time-consuming and less expensive than litigation. However, even when using an alternative dispute resolution method, you will still need a skilled and knowledgeable family law specialist to provide you with the advice and support you need to negotiate the issues in your case with confidence.
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