Alternative dispute resolution (ADR) methods such as mediation, collaborative law, and arbitration are extremely popular methods for resolving a divorce. These methods can offer many benefits. They are often less expensive than going to trial, they encourage cooperation, they may be faster than a litigated case, and they offer a higher degree of privacy than filing your case in state court. However, this approach is not for everyone. There are many drawbacks involved with ADR and these can be of great concern, particularly for multifaceted divorces.
1. No Access to a Judge
If your case is handled by a mediator, arbitrator, or collaborative lawyers, the case is handled completely outside of court without any judicial oversight. In fact, in most situations, your case is not even filed in court until a settlement is ready.
Staying out of court is often touted as a benefit of ADR. However, this also means that there is no immediate recourse if an emergency situation develops (such as one spouse refusing to allow the other contact with a child or one spouse withdrawing marital funds). To obtain a court order, the case must be initiated from the beginning which is time-consuming. In a high-conflict case, you need a judge familiar with the case who can make immediate decisions and issue emergency orders.
2. Lack of Legal Advice
In mediated cases, the parties meet with the mediator together, without any attorneys. They negotiate on their own and make decisions about how to resolve the case independently. In a multifaceted divorce, it is nearly impossible for a layperson to create a settlement that addresses the many assets and issues and achieves a fair result.
3. Lack of Disclosure
When a case is filed in court, the parties are legally required to make a complete financial disclosure and share all of their financial and economic information with the opposite side. Failure to provide this information can result in contempt of court. When a divorce goes through ADR, there is no legal requirement for disclosure and no compliance mechanism. That only comes into play once the case is actually filed, which is usually not until a settlement is reached. This means that you may be making decisions based on information that is incomplete or untrue.
The only way to ensure you have complete and accurate disclosure is through a standard litigated divorce. Additionally, even if you do use an attorney in an ADR case, that attorney has no power to subpoena anyone or any information. There is no mechanism for ensuring you are getting correct financial information.
4. Lack of Required Milestones
Once a divorce case is filed, a clock starts ticking and certain things must be filed by certain dates. The case is forced to move along on a timeline set by the court. In ADR, there are no required milestones. A case could languish in ADR with no movement or progress for months. The only way to force progress in that situation is to actually move forward and file the divorce in court. A litigated divorce moves forward at a pre-determined pace with specific requirements that must be met by defined dates.
5. No Appeals During the Process
Since ADR cases have not yet entered the judicial system, there is no way to appeal a decision made by an arbitrator or mediator. If a case is being handled through the court system, every temporary order or interim decision by the judge could be appealed if it was made incorrectly, giving the parties a path to correcting it. ADR exists outside of the legal system and the arbitrator or mediator involved in the case generally is not subject to appeal.
6. No Formal Rules
A lack of formality and rigid requirements is often mentioned as a benefit of ADR. However, in a complex divorce, those rules are necessary to ensure the parties comply with agreements, provide all the information they must provide, and meet the responsibilities they agree to. For example, if temporary spousal support is agreed to in a collaborative law meeting, the spouse who is supposed to pay it can simply ignore this agreement with no penalty. If temporary spousal support is ordered in a litigated case, it is a formal court order that can be enforced.
7. Lack of Skills
Whatever your career or industry, you’re likely not a divorce litigator. Handling your divorce through ADR requires you to manage your own case, make important decisions on your own, and negotiate with little or no input from a skilled litigating attorney who can foresee what kind of outcome would be available to you in court.
While it is true that arbitration and collaborative law take place in the presence of an attorney, the skillset of that attorney is not usually that of a litigator. You cannot obtain the same robust representation through ADR that you can with a trial attorney.
8. High Conflict Couples Mean High Conflict Cases
If your relationship is volatile and high conflict, it is very unlikely you will be able to resolve it through ADR. ADR is based on principles of negotiation, outcomes for the common good, and cooperation. If you and your spouse are at a point where civility, let alone combined efforts are impossible, ADR is a waste of your time and money. You would be better served by immediately hiring an experienced litigator who can quickly and efficiently move your case to a trial.
9. Domestic Violence is a Deal Breaker
If there has been domestic violence in your relationship, it creates a power imbalance. The abused spouse does not have equal footing and cannot effectively negotiate the divorce. Additionally, even if you as a couple decide you want to pursue ADR, the court may disallow your settlement for the reasons stated above.
10. Wasted Time and Money
If your case is not appropriate for ADR, you will waste time and money on the process only to wind up with a traditional litigated divorce. Instead of spending time unsuccessfully trying ADR, it is better to immediately begin the litigation process.