October 2nd, 2023
Going through a divorce isn’t easy, and the litigation process can make it that much harder. Fortunately, you don’t need to go through a stressful, lengthy, and contentious battle in court to end your marriage. In Minnesota, there are several forms of alternative dispute resolution (ADR) that can be used to resolve the issues that must be determined in order for you to part ways with your spouse. In addition to being more cost-effective and less time-consuming, ADR can help the parties reach a resolution without court intervention — and reduce the emotional impact of divorce on both parties and their children.
When preparing for divorce, here are several different forms of alternative dispute resolution to consider using to resolve the issues in your case:
With mediation, spouses work together to reach an agreement and craft a settlement regarding the issues that must be determined to divorce — including property division, child custody and parenting time, child support, and alimony/spousal maintenance. Mediation is an informal, non-adversarial process that takes place outside of the courtroom in a neutral environment, with the assistance of a trained third-party called a mediator. The mediator does not provide legal advice or take sides, but rather, they facilitate open and healthy communication between the parties.
Mediation is an entirely voluntary process and requires the willingness of each party to participate. A couple can schedule mediation sessions at their own convenience with the mediator, rather than be reliant on the court’s calendar, which can slow down a case. Often, a divorce case that is mediated can be resolved much more quickly than those that go through litigation. Instead of focusing on winning or losing, mediation allows couples to focus on reaching a peaceful settlement and an amicable resolution. This process works best when there is a basic level of trust between you and you have the ability to each express your needs freely in a structured environment.
The Collaborative Divorce Process
Similar to mediation, the collaborative divorce process is a form of alternative dispute resolution that takes the emotional, financial, and relational impact of divorce into account. It allows a couple to divorce more amicably, outside of court by utilizing a team of professionals, tailored to their needs, to help them enter into a settlement agreement. Importantly, with the collaborative process, everyone must be committed to resolving the divorce without judicial intervention. The process begins with an agreement made between the spouses and their attorneys that they will not resort to litigation — if either spouse decides to go to court, they will have to retain new attorneys for litigation. This means that everyone is committed to problem-solving and reaching a resolution that will work for both people and the family as a whole.
The team that is assembled in collaborative divorce depends upon the needs of the couple and their specific situation. For instance, a financial neutral can assist a couple with gathering and verifying assets, liabilities, income and budgets, evaluating their finances and help them find a fair way to divide their assets and evaluate monthly cash flow. A divorce coach can help a couple communicate in a healthy manner and keep them on track with managing their emotions as they move forward, rather than revert to their old dynamics. In cases where custody is at issue, a neutral child specialist can help the parents understand how to address the best interests of their children and create a parenting plan that meets their needs. Your collaborative attorney can help you determine which professionals would be most helpful and cost effective in reaching agreements. Significantly, collaborative divorce isn’t only focused on resolving the issues pertaining to divorce, but it also provides you with the tools you need to avoid potential parenting time and custody disputes with your former-spouse moving forward.
The Collaborative Process has many benefits in that everyone is invested in reaching an agreement out of court that both people are willing to sign off on. Attorneys are not present at all meetings, thereby saving time and costs by using the professional with the skill set and expertise most applicable to the issue at hand. There is a focus on underlying interests rather than legal positions guiding the decisions, thereby creating durable, creative agreements that meet a family’s needs.
Early Neutral Evaluations
Early Neutral Evaluation (ENE) is a process that is meant to address parenting time, child custody matters, and financial agreements. While it is similar to mediation in that it is a form of alternative dispute resolution which takes place outside of court with the help of a neutral third-party, it differs in that the evaluator provides unbiased feedback and makes recommendations. The process begins with the evaluator hearing the positions of each party and asking them questions to get a better understanding of their case.
The ENE process benefits include saving time and money that would be spent on litigation. It also helps ensure spouses keep the focus on their children and are more satisfied with the outcome of their divorce. When parties who are facing a dispute regarding custody or finances choose ENE to divorce, they will select from a list of neutrals who assess the case and assist with reaching a compromise. Because the neutrals are evaluating based on the law and what a court would do, creativity may not be as present as in mediation and the collaborative process and positional thinking is still the main mindset.
Arbitration is a form of alternative dispute resolution that is similar to a mini trial. However, it takes place outside of court, is confidential, and is less formal than litigation. Rather than a judge hearing the case, a neutral party referred to as an arbitrator will make a decision that is binding on both parties. Unlike with litigation, where the parties cannot choose who presides over their case, they can agree on an arbitrator.
In arbitration, evidence is exchanged — but the discovery process is much more limited than it would be in court. Arbitration can be much faster and cost-effective than litigation, while still focusing on communication and amicable resolution, as with mediation. It also allows the couple to have more control over the outcome of their case so that an agreement can be reached that meets the needs of both parties. But, the couple is taking risks in giving someone else binding decision making power so this is often not used as a first approach.
Contact an Experienced Minnesota Divorce Attorney
If you’re parting ways with your spouse, it’s essential to consider whether a form of alternative dispute resolution is right for you. A skillful family law attorney can evaluate your case and discuss your options. Divorce and family law attorney Louise Livesay has been dedicated to helping clients in the Twin Cities area resolve their divorce matters respectfully and peacefully for more than two decades using alternative dispute resolution methods. We welcome you to contact us online for a consultation or by calling 651-294-2338.