There are three approaches to resolving disputes out of court: negotiation, mediation, and arbitration. Negotiation is simply people trying to work out settlement. It can happen with the parties trying to work out the issues across the kitchen table, on the phone, or through email. The parties’ attorney can also draft and exchange formal settlement proposals, talk on the phone, or arrange a conference meeting to negotiate.
Divorce and Child Custody Mediation
With mediation the parties bring in a third party, a skilled mediator, to facilitate negotiations. Mediation is often conducted in a conference room at a preset date and time. Mediators are needed because people—including attorneys—often have poor negotiating skills. People often argue based on emotion, try to turn the negotiations into a test of wills, or even into a shouting contest. Very often in divorce, poor negotiating is what caused the marriage to fall apart in the first place. A mediator can help people focus on the specific issues and consider solutions they hadn’t previously considered. A good mediator will maintain a calm, reasonable, patient demeanor at the table that will encourage everyone to calm down and be reasonable. The mediator is only there to facilitate negotiations between the parties. The mediator has no authority be make decisions. If the parties are unable to reach an agreement, the mediation simply ends without a result.
Family Law Arbitration
In arbitration, an arbitrator is chosen by the parties and given the authority to make decision just like a judge. The parties appear before the arbitrator, usually in a conference room, and present evidence. The arbitrator then gives the parties a written ruling that resolves the parties’ disputes. Arbitration is a streamlined version of litigation that has the same result: a decision is made for the parties. It is quicker and cheaper than going through the court.
Advantages of Settlement Agreements
Settling out of court has a number of advantages:
- You get the dispute resolved sooner;
- Settlement costs a lot less than a court trial;
- Agreements preserve relationships, or at least do not further fan the flames of marital discord;
- The process is more flexible and the parties are more in control;
- Settlement can tailor a better fitting solution then the court can;
- Settlement eliminates the risk and unpredictability of a trial; and
- The parties are usually more satisfied with the result, so that the resolution can be lasting.
Particularly regarding custody, the parties will have continuing contact with each other for years. A negotiated settlement can be the foundation for workable, cooperative interactive going forward. A trial and a court ruling often aggravates everyone and leaves the “loser” itching for revenge later.
A Written Settlement Agreement
If settlement is reached, the attorneys will draft a written settlement agreement. Drafting the written agreement correctly requires the skill of an experience divorce lawyer. Many times we have been involved in unnecessary litigation that sprang from a poorly drafted settlement agreement. If the agreement is reached in court prior to trial, the agreement will be placed “on the record” (tape recorded in court). The attorneys will then draft a consent order containing the agreement for the judge to sign.
If direct negotiations and mediation do not yield a settlement, an arbitrator should be considered. Arbitration is an option for all issues in family law cases, including custody. A requirement to resolve future disputes through arbitration can be written into future agreements to avoid the delay and expense of court litigation. Both mediators and arbitrators are professionals who have to be paid for their time, but their service usually reduces the overall expense of resolving the dispute substantially. In our view, arbitration should be more widely used to resolve disputes in family law cases.
The Law Office of Lee S. Ashmore
777 Gloucester Street, Suite 402
Brunswick, GA 31520
P: (912) 275-7728
F: (912) 342-7142