Divorce is difficult for all involved, even without the drama that often accompanies a litigated procedure. Many couples in Minnesota and elsewhere are increasingly turning to alternative dispute resolution (ADR) methods to get through this very painful life transition. ADR provides options for divorcing couples to resolve their legal problems and avoid the time and expense of a courtroom procedure.
Most marital dissolutions in Minnesota now happen using ADR methods. When choosing the legal professional who will serve as the third-party neutral for either arbitration or mediation, it is important to consider their record and effectiveness in coming to satisfactory resolutions that also streamline a satisfactory divorce settlement.
Differences between arbitration and mediation
Two common types of ADR in divorce are arbitration and mediation. Although both involve a third-party neutral who facilitates conflict resolution for the purpose of reaching a mutually agreed-upon resolution out of court, there are significant differences in the role the neutral plays in each process.
In a mediation, the neutral meets with each side independently to discuss ground rules for the process and gather information about the goals and points of conflict of each side before arranging a meeting with everyone in the room. The couple must provide a comprehensive inventory with accurate valuations of assets and debt.
Then, after gathering the necessary needs and interests of each side, the mediator helps both sides to negotiate by presenting different possible outcomes. The goal of mediation is to present opportunities for compromise so that both parties can agree to come away with some, if not all, of what they wanted. The mediator’s role is as a facilitator in the process.
In an arbitration, however, the third-party neutral serves the role of a private judge. Although the process is more formal than mediation, it is less so than a courtroom procedure, and importantly, is private. The two sides, with their attorneys, present their arguments in an arbitration hearing before the neutral, including issues that are preventing resolution. The arbitrator renders a verdict, called an award, which is binding.
Pros and cons
The main advantages of ADR methods such as mediation or arbitration are that the process is:
- less time-consuming than litigation
- less expensive
ADR is not effective in all situations. In arbitration, the parties do not have courtroom protections, as they must accept the decision of the neutral. Mediation is not effective if one or both parties are uncooperative, if there is a history of domestic violence, or if one side has greater power over the other.