Alternative Dispute Resolution to a Divorce Part 1: Mediation, Principled Negotiation, and Facilitated Negotiation
Say the word “divorce” and most people picture the movie version: a process server bursting through the door stating, “you’ve been served,” a courtroom shouting match, months (sometimes years) of airing your financial statements and parenting disputes on the public record, all so a judge can decide questions about your family based only on the slice of your life that makes it into the record.
Here’s the part Hollywood leaves out. Most divorces settle before trial, and even the ones that don’t settle cleanly often resolve on the courthouse steps. The reason is simple: going to trial means handing the decision over your future (and your children’s) to a judge who knows only a fraction of your life and has never seen your children. By contrast, settling gives you and your spouse control of the outcome, even if it is not quite what you would have hoped for.
That is the appeal of alternative dispute resolution. The idea is to trade the expense, the delay, and a good deal of the drama for a process that gets you straight to building your post-divorce life and to an agreement that is tailored to your children and your family.
It only works, of course, if both spouses are willing to sit at the same table and discuss settlement in good faith. Not every case is ready for that. There also are some cases where alternative dispute resolution is not the best avenue and where court intervention is needed at the outset (i.e., child abduction by a parent, domestic violence, financial misconduct, etc.).
But for most families, ending a marriage through alternative dispute resolution can be a real gift to both spouses and, more importantly, to their children. Yes, a “successful divorce” is possible: one where you co-parent effectively, where your children never have to agonize over the seating chart when they are planning their wedding; or where both parents can proudly walk beside their children at graduation without it being awkward.
There are several methods of alternative dispute resolution: mediation, principled negotiation, facilitated negotiation, and collaborative divorce.
Part 1 of this two-part series focuses on Mediation, Principled Negotiation, and Facilitated Negotiation.
Mediation
Think of a mediator as a skilled guide rather than a referee. You and your spouse sit down (in the same room, in separate rooms, or over video) with a neutral third party trained to keep the conversation productive. Together, you work through dividing assets and debts, building a parenting plan, and deciding whether support will be paid and what it will look like. The mediator helps you communicate, brainstorm options you may not have considered, and steer toward resolution. What is said in mediation is generally kept confidential, which encourages candid conversation. One important caveat: because the mediator must remain neutral, he or she cannot give either of you legal advice. Some couples mediate without lawyers, but many keep an attorney in their corner to advise them before, between, and sometimes during sessions. Even if you mediate on your own, having a lawyer review any agreement before you sign it is generally a good idea. An hour of review now can prevent years of regret later.
Principled Negotiation
Here, each spouse retains his or her own attorney, and the lawyers exchange proposals and negotiate on their clients’ behalf. “Principled” is the key word. Rather than trading demands and digging in, the couple and their attorneys agree on ground rules and a timeline up front, then resolve each issue on its merits, focusing on what each spouse actually needs rather than on scoring points. Occasionally, only one spouse hires an attorney. In that case, that attorney typically drafts the agreement, but be aware: the attorney represents only the client who hired him or her and cannot answer the other spouse’s legal questions. The unrepresented spouse always has the right to consult his or her own lawyer before signing and doing so is wise.
Facilitated Negotiation
This approach builds on principled negotiation by adding a neutral third party, often a mediator, to the team. Each spouse still has an attorney advocating for him or her, while the neutral oversees the process, helps resolve specific sticking points, and keeps everyone moving toward closure. It can be an especially good fit when the issues are complex or emotions run high: you get the benefit of a dedicated advocate and a steady, neutral hand guiding the process.
From Agreement to Final Decree
When any of these processes succeed, the result is a written Separation Agreement that divides all assets and liabilities and addresses spousal and/or child support. If you have minor children, a parenting plan will also be prepared, covering the allocation of parental rights and responsibilities (what most people call custody), parenting time, holidays, and the other issues that shape your children’s daily lives. Once signed, these agreements are filed with a Petition for Dissolution of Marriage, along with all other forms your county requires.
Ohio law then requires the court to hold a final hearing within 90 days after filing. That hearing, held in person or virtually depending on the court, usually lasts only 15 to 20 minutes and allows the court to confirm that both spouses understand the agreements, entered into them voluntarily, and are satisfied with their terms. In most cases, the court grants the dissolution that same day.
In Part 2 of this series, we will explore collaborative divorce, a process in which the couple can be surrounded by a true team that has the same goal: full transparency and good-faith problem-solving.
There is more than one road out of a marriage, and the right one depends on your circumstances. At KJK, we can help you choose the alternative dispute resolution process that best fits your family and provide legal counsel every step of the way. Reach out to Eva C. Saulnier (ECS@kjk.com) or another member of KJK Family Law by calling 216-696-8700.