Options for Resolving a DivorceDec 18, 2018
Unfortunately for many couples, the holiday season triggers an increase in divorce activity. While most people have friends or family who have been through a divorce, few understand the process or the many available options to resolve a divorce. Viewing the options as a continuum from most cooperative and cost-efficient to most contentious and expensive, the most common options include: direct negotiation, mediation with two unrepresented parties, collaborative law, mediation with the assistance of lawyers, negotiation through counsel, arbitration, and litigation. This blog post will briefly address each option.
Direct negotiation. The concept of direct negotiation is self-explanatory. Some parties are able to discuss and resolve the terms of a divorce without the assistance of others. The availability of all necessary forms on the court’s website to initiate and conclude a divorce simplifies such discussions. See https://www.courts.state.nh.us/fdpp/forms/allforms.htm#divorce. Couples who are able to go this route can simply complete the forms and then submit the forms for court approval.
Direct negotiation works well if the parties have a cordial relationship, equal bargaining power and few disputed issues. Aside from filing fees, the cost of an uncontested divorce that is resolved by the parties is negligible. Since each party speaks directly to the other, the risk of miscommunication is low. However, direct negotiation does not work well in cases with significant disagreements, abusive behavior, distrust, lack of accountability or complex assets.
In nearly all cases, even with direct negotiation, parties would be well-advised to consult with an attorney before signing or filing a settlement agreement. Divorce property settlements are generally not modifiable once approved by a court. An ill-advised or poorly drafted agreement may result in hardship that a court cannot remedy. Avoiding review of an agreement to save money may, instead, create costly headaches down the road. Attorneys may be engaged on a limited and relatively inexpensive basis to act as consultants to review draft agreements, discuss how certain issues would be resolved by a court, come up with creative ideas to resolve difficult issues or assist with the completion of settlement documents.
Mediation with or without attendance of counsel. In New Hampshire, the overwhelming majority of cases are resolved through mediation or negotiation and without a final hearing or trial. In recognition of the effectiveness of mediation, New Hampshire law now requires all parents of minor children, absent unusual circumstances, to attend mediation. The courts also encourage parties in cases without minor children to pursue mediation.
Mediation is a private and confidential process. A mediator is a neutral third party who facilitates a discussion between parties to a dispute. Mediators facilitate discussions about needs, goals and solutions in an effort to help parties reach agreements on parenting and financial matters. During mediation parties may meet together or in separate rooms. If parties are in separate rooms, the mediator will shuttle back and forth between the rooms to communicate settlement discussions. Parties can attend mediation with or without counsel. In some cases, parties attend mediation without counsel present but use an attorney outside the process as a coach or consultant to answer questions as they arise. It is important to note that mediators do not represent either party and a mediator does not have the authority to issue a binding decision. Mediated cases only settle when parties reach agreement.
Mediators may be court appointed or privately retained. Court appointed mediators are usually attorneys or mental health professionals, but might also be professionals from other fields, like law enforcement or the financial industry. Court appointed mediators typically conduct two or more two-hour mediation sessions at a rate determined by the court. These sessions are scheduled at the convenience of the involved parties and may span several weeks or months. These mediation sessions usually occur at the court. The cost of a court appointed mediator is generally less than that of a private mediator, but cost should not be the only consideration.
Private mediators are selected by agreement, usually by agreement of counsel, not appointed by the court. Such mediators are usually respected and experienced family law attorneys or retired family court judges or masters. Rather than multiple two-hour sessions spread over weeks or months, private mediators typically schedule mediation for a full day, or sometimes a half day. Such sessions usually occur at the mediator’s office or the office of counsel for one of the parties. In most cases, with adequate preparation, all issues can be resolved in a single day. Private mediation is best for cases where both parties are represented by counsel and there are a variety of disputes or complex issues. In such cases, attorneys can exchange the necessary information in advance, prepare for the mediation, negotiate complex issues, and participate in the drafting and finalization of agreements on the day of mediation.
When a case is resolved through court appointed or private mediation, the parties often sign settlement documents on that same date or shortly thereafter. Courts usually review and approve divorce settlement agreements without the need for a hearing or appearance in court. The timeframe for approval of such agreements varies from court to court, but is generally around one month from the date of filing.
Collaborative Law. The collaborative process is uniquely focused on interest-based resolution and open, civil, direct communication, as opposed to arguments based on rights and demands. In collaborative cases, the parties, their attorneys and jointly retained professionals (i.e. divorce coaches and financial professionals) work as a team to resolve a divorce. A participation agreement disqualifies the professionals from representing the parties in court if the process breaks down and, therefore, incentivizes everyone to work toward resolution. All funds spent in the collaborative process are directed toward the resolution of the dispute. The team meets together in a series of short meetings, often four to six meetings, to cooperatively discuss all issues and resolve the divorce.
The collaborative process is dependent upon open and honest communication. It is ideal for parties who continue to trust each other and treat each other well, but do not wish to be married any longer. Parties are generally highly satisfied with the process. It is not ideal in cases involving mental illness, distrust, extreme anger, abuse or a history of financial deceit.
For more information on the collaborative process visit the International Academy of Collaborative Professionals (https://www.collaborativepractice.com) or the New Hampshire Collaborative Law Alliance (https://collaborativelawnh.org/) or see our prior blog post: https://orr-reno.com/the-benefits-and-basics-of-collaborative-law/.
Negotiation between counsel. In the past, the two most commonly utilized means of resolving a divorce were negotiation between counsel and trial. Negotiation between lawyers is now less favored, especially as an initial settlement strategy, as it is like a game of ‘telephone’ with the attendant time-inefficiencies and possibility for miscommunication. The other dispute resolution mechanisms generally offer faster, less expensive, and more direct means to resolve cases. Negotiation through counsel is still frequently used to resolve small, early or urgent issues in a case, but it is not commonly used as an initial approach to settle all issues in a nuanced or complex case.
Arbitration. Arbitration is a means to resolve a dispute outside of court, through a court-like process with a privately-retained decision maker, usually a retired judge. Since the Constitution guarantees all citizens access to courts for resolution of their disputes, absent agreement, a court cannot order parties to arbitrate a dispute. Parties who participate in arbitration do so by agreement. Arbitration is relatively uncommon in the divorce context, as the family courts are generally inexpensive, easily accessible and timely. Arbitration is often extremely expensive because the process is privately-funded and not part of the court process. Nevertheless, if the parties are able to fund the expensive arbitration process, it can be beneficial for cases plagued by judicial delay or inaccessibility, where extra accessibility to a judicial officer is desired, or to ensure that a divorce case that would not otherwise not be sealed by a court (i.e. that of a high profile litigant or public figure) is handled confidentially.
Litigation. Litigation is a complex and unavoidably adversarial process. A detailed discussion of litigation is beyond the scope of this blog post. However, in general, the litigation of a divorce generally takes 1-2 years and involves multiple court appearances, formal discovery, experts and, potentially, a trial at the end of the case. Courts are public forums. Hearings and documents filed are generally available to the public, unless protected by statute or sealed by the court. Litigation is necessary to resolve disputes that parties cannot resolve on their own. In some cases, litigation may be the only way to protect a party’s rights or obtain a fair result, however, litigation is an expensive and adversarial process that weighs heavily on the parties.
Courts make various efforts to encourage divorcing parties to settle. In cases with minor children, parents are required to attend two events that encourage settlement, the first appearance conference (see https://orr-reno.com/first-appearance/) and the child impact seminar (see https://orr-reno.com/child-impact-seminar/). Courts routinely require divorcing parties to attempt mediation. For those cases that do not settle in mediation, courts often arrange for a further settlement conference known as a neutral evaluation. Neutral evaluation is a confidential process wherein a judge that is not assigned to the case will listen to the arguments of both parties, opine on how they would decide the case and attempt to facilitate settlement discussions. Like mediation, the process is confidential and the discussions are not shared with the judicial officer who is assigned to the case.
Most cases involve several of the above dispute mechanisms. For example, it is not uncommon for a case to start in litigation, but to be resolved through mediation and negotiation. All cases are different and the best approach for each case should be decided based on the parties involved and the issues presented.
About the Author: Margaret Kerouac