What is Alternative Dispute Resolution?
It is becoming very common for our clients to ask about alternative dispute resolution (ADR). In fact, in many judicial districts in North Carolina, the district court has adopted rules for mandated ADR in family law cases. The goal of the Administrative Office of the Courts is to have statewide mandatory custody mediation and mandatory ADR for the resolution of financial issues related to separation and divorce. Even after you file a lawsuit, statistics show that 80 to 90 percent of court cases settle before trial. Unfortunately, many of these settlements occur only after the parties have expended significant amounts of money and time in the process. Many of these risks of losing time and money can be avoided if you are able to negotiate a solution directly and retain control over the outcome.
There are several forms of ADR which may facilitate the resolution of your case before or after a lawsuit has been filed. Depending on what sorts of relief you are seeking, they may include mediation, reference, binding arbitration, judicial settlement conference and early neutral evaluation. A new approach to out of court resolution of family law cases is "collaborative law," which is a process designed to completely avoid the litigation process. With the exception of collaborative law, in each of these methods, the opposing parties seek assistance from a neutral third party to resolve their disputes. In collaborative law, the parties work with their respective lawyers together to cooperatively reach a mutually satisfactory resolution of all marital issues. There is general agreement about how each method of ADR works, but there are several different approaches to consider. ADR can provide you with a less costly and more expeditious resolution of your disputed issues.
The basis for all dispute resolution is open and complete disclosure, financial and otherwise. Formal discovery, the process of obtaining information incident to litigation, takes a lot of time and can be quite costly. For the purposes of ADR you will each be required to disclose anything that would have a bearing on the issues. Typically, assets of significant value are appraised and information is gathered, analyzed, and discussed until both of you have a clear understanding of all options and can make informed decisions on each issue.
Why is Alternative Dispute Resolution encouraged?
Alternative dispute resolution can save financial and emotional costs. Not only is litigation expensive and time-consuming, but it can be very stressful. You may feel that an important part of your life is on hold while you are waiting for a trial date, wondering and worrying about the outcome. If you have to deal with each other in the future, using an adversary process like litigation risks polarizing and embittering your relationship. The emotional wounds from fighting may never heal, and these wounds can complicate your future dealings and make it impossible for you to have a satisfactory relationship.
Going to court can make people anxious because they feel they face hard to understand procedures, unfamiliar legal language and win/lose scenarios. On the other hand, you have more control over the format if you use ADR. For example, mediation is a fairly informal process, conducted in regular English and the solution must be agreed to by both of you. Similarly there is no resolution without agreement in a collaborative law case and the parties are actively and directly involved in each step of the process including information gathering, evaluation and negotiation.
