Resolving Custody and Divorce Issues:
Traditional Litigation versus
Alternative Dispute Resolution
by Michael Osburn, Esq.

What is Traditional Litigation?

Traditional litigation is the process where issues are resolved by a court. In many cases, traditional litigation can be an expensive and lengthy process. Both parties will retain their own attorneys, who will conduct discovery and present evidence at a trial or hearing. Each attorney will try to obtain the outcome desired by his client.

Sometimes, a party will represent himself in a litigated matter. This can be risky. A self-represented party is required to comply with court rules and procedures in the same fashion as an attorney.

Following the trial or hearing, the court will issue a decision resolving the matters in dispute. Examples of matters resolved by courts include custody and visitation, child support, maintenance, and the distribution of assets and debts.

What is Alternative Dispute Resolution?

Alternative Dispute Resolution (ADR), as the name suggests, is an alternative to traditional litigation. Mediation is the most widely used method of ADR. Collaborative law is a second type of ADR which is becoming an increasingly common way to resolve custody and divorce issues.

What is Mediation?

A mediator is specially trained to help people resolve disputes. The mediator may be an attorney. However, many mediators have no formal legal training or experience. The mediator is neutral and will not provide advice to either party.

The parties will meet with a mediator until they reach a resolution of their dispute. If the mediator is an attorney, he/she may draw up a formal agreement which can be signed by the parties and become a binding contract. If the mediator is not an attorney, the parties will need to hire an attorney to prepare the formal agreement. Sometimes, the parties can have an informal mediated agreement incorporated into a binding court order without having an agreement drawn up by an attorney.

What is Collaborative Law?

Collaborative law is a formal process where each party is represented by an attorney. Unlike traditional litigation, the parties and their attorneys do not submit the issues to a court for resolution. Instead, the parties and attorneys negotiate until a mutually acceptable resolution is reached.

Attorneys who help clients resolve custody and divorce issues collaboratively must have special training on handling cases in this manner. Additionally, the attorneys must be members of a professional group which establishes local standards and practices to which the attorneys must adhere. Other specially trained professionals, such as an accountant and a social worker (counselor), may also be used to help the parties negotiate and reach an agreement.

A formal agreement will be signed by the parties at the conclusion of the collaborative case, which will become binding and legally enforceable.

What are the Benefits of Alternative Dispute Resolution?

ADR is intended to be less adversarial than traditional litigation. In cases where children are involved, this can be an extremely important benefit. Even in cases without children, the parties may prefer to avoid the high conflict commonly entailed in traditional litigation.

ADR allows the parties to reach a resolution which is acceptable to both parties. In traditional litigation, there is no guarantee on how the court will resolve issues. It is very rare that both parties will be satisfied with the resolution ordered by the court. In fact, both parties might be unhappy with part or all of the court’s decision. This can be due to the court making a mistake, which could lead to the further expense and delay of an appeal to a higher court. However, even where the court’s decision is legally sound, both sides can be left dissatisfied.

It is possible that ADR can be less expensive than traditional litigation. This is more likely to be the case when mediation is used.

What are the Drawbacks of Alternative Dispute Resolution?

If the parties resolve issues through mediation, they can run the risk of unknowingly waiving important legal rights or consenting to an agreement that will be difficult to implement or enforce. This is because the mediator cannot provide legal advice to the parties. This means that the parties, who likely have no experience or training on the important issues at hand, must rely on their instincts and common sense. Unfortunately, these resources are rarely a good substitute for sound legal advice.

There is no guarantee that the parties will be able to reach a mutually acceptable agreement through ADR. This can result in the parties devoting significant time, energy and money to a process which does not resolve their problems.

ADR is not appropriate where one party has been abused or victimized by the other party. In traditional litigation, a spouse or parent who has been the victim of domestic abuse or violence will very likely be protected by the court. There is no such protection in ADR.

Closing Thoughts.

The choice between litigation and ADR to resolve custody and divorce issues is not easy or clear cut. Each option has advantages and drawbacks.

It is possible to try to incorporate the advantages of both options in some cases. For example, a party choosing mediation should consult independently with an attorney to make sure she is aware of her legal rights and to help her evaluate the soundness of a proposed agreement. Likewise, parties who have selected the traditional litigation route may work toward a mutually acceptable settlement on some or all of the issues in dispute. In fact, many judges will encourage litigants to work with one another and their attorneys to resolve issues. Judges are aware that such resolutions are frequently more satisfactory and successful than what the court can accomplish.

Collaborative law is in some ways a hybrid of mediation and traditional litigation. Each party is represented by an attorney who provides legal counsel at every step of the process. The collaborative process is designed to reach an outcome acceptable to both parties. It is not a perfect process and will not work in every case, however. The collaborative approach can sometimes be as expensive as traditional litigation, and there is no guarantee that a resolution can be reached collaboratively.

Parties needing to resolve custody and divorce issues will need to evaluate what approach is most appropriate for their situation and financial resources. A consultation with an experienced family law attorney can be extremely helpful when considering which option to select.