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When to Consider Alternative Divorce Resolution Options

By Sarah Jacobs, Esq.

Divorce is often a stressful experience for families, especially when parties are faced with choosing the right avenue to help reach a divorce settlement. 

While some divorces may require litigation, there are alternative divorce options for parties looking for what is generally a less time-consuming, less demanding, and less costly process. 

In New Jersey, couples have the choice of pursuing alternative dispute resolution rather than litigation, or contemporaneously with litigation, as a method of settling their divorce. Alternative dispute resolution has numerous benefits, although due to the complicated nature of divorce, it’s essential to work with a trusted attorney to pursue the best path forward for your family.

What is alternative dispute resolution?

While litigation—i.e., having issues resolved in the courtroom—may ultimately be necessary for some couples, there are more ways to reach a divorce settlement than bringing your marital disputes before a judge.  

Alternative dispute resolution (ADR) is an umbrella term for legal alternatives to long, drawn-out litigation. Moreover, ADR is often faster and less expensive than litigation. 

Several ADR methods may be used during a divorce, including arbitration and mediation

What is arbitration?

Arbitration is similar to a trial but allows for greater customization and flexibility. In arbitration, parties are permitted to select the arbitrators involved and customize the scope of the arbitration and, to some extent, the process itself.  Arbitrators act as judges in the case, hearing evidence and providing written opinions.

Like other forms of ADR, arbitration tends to be faster and less expensive than traditional litigation. However, arbitration differs from other approaches because it’s usually a legally binding process—both parties must agree and adhere to the arbitrator’s decision. There are also very limited exceptions and very limited ways to appeal.

What is mediation?

Mediation is a widely-used ADR method that allows families to save on time, stress, and financial cost. With the help of a trained and neutral third party, mediation allows parties to talk through their issues and attempt to arrive at a fair compromise, rather than each party arguing their own side in court.

If appropriate, the mediator can suggest solutions or make recommendations to resolve certain issues, but the divorcing parties aren’t required to proceed with these suggestions. 

During mediation, the couple works with a neutral third party to come to decisions about many issues, including:

  • Asset and debt division
  • Child support
  • Parenting time and child custody
  • Alimony
  • And more

While less stressful and expensive than litigation, ADR is equally as nuanced. It’s important to work with experienced alternative dispute resolution lawyers to find the right solution for your specific needs.

Reasons to consider ADR for your divorce

You want to avoid a stressful, drawn-out divorce.

ADR doesn’t make the stress disappear, but it encourages a more solution-oriented approach.  Mediators, for example, can help you and your partner identify issues important to you and find creative ways to address them whenever conflict arises, whether it’s before, during, or after your divorce. If you use mediation or arbitration, you can file for an uncontested divorce once you’ve completed the process. Even if you’ve already filed, you can choose ADR while in the process and let the court know the case has been settled and can be moved forward for resolution.

Divorces that use ADR also benefit families with children. Just as ADR is often less stressful for parents, it can also be easier on children. There aren’t winning or losing sides in a marital agreement arrived at through ADR, so parents aren’t pitted against each other. Research shows that exposure to parental conflict has a more negative impact on children than parental separation.

You want to keep costs down

Although the cost of a divorce depends to some degree on the complexity of the matters involved, divorce via ADR can be less expensive than a litigated divorce. Working with an attorney knowledgeable about arbitration or mediation is still recommended to serve as your counsel during the process. Still, the hours required tend to be less than if they have to prepare for court hearings or trials. (Again, this all depends on the complexity of the case.)

You and your partner want more control over the process

ADR is voluntary, and the separating parties make the final calls. This allows families to adjust for the specific situations in their lives, as opposed to a judge’s decision, which will be made even if there isn’t a mutual agreement. 

An added benefit is that couples who use ADR can also better control public information surrounding their divorce. Divorce litigated through the court is typically a matter of public record. However, the details can remain private when you reach a divorce settlement through ADR.

When can you use ADR in a divorce?

ADR methods can be used at multiple points throughout divorce, and the New Jersey court system allows for a divorce to move from litigation to ADR and vice versa.

Before you start your divorce

Divorces don’t happen overnight. If you’re considering divorcing your spouse, talk to a divorce attorney and ask how ADR might help you accomplish your goals. Depending on your relationship with your spouse and your feelings about divorce, you may be able to use mediation to augment discernment or couples counseling as a way to navigate the next steps of your relationship. 

If you and your spouse agree that divorce is the right choice for your family, you can work with a mediator to discuss aspects of your divorce agreement, such as child custody, alimony, and other concerns. Mediation is highly customizable, so your family is far more likely to walk away with an agreement that meets your specific needs.

As you’re going through your divorce

How you start your divorce doesn’t have to be how you end it. Even if the beginning feels acrimonious and stressful, there are steps you can take along the way to de-conflict your divorce—like switching to mediation or arbitration or employing ADR while you go through litigation in court.

For instance, during the pre-trial phase of traditional litigation litigated divorce, a divorcing couple may be able to resolve contested issues in their divorce through an Early Settlement Panel (ESP). This process can facilitate settlement before going in front of a judge, providing parties recommendations based on evidence submitted during discovery.

Some New Jersey counties also have an Intensive Settlement Conference as the last step before going to trial. In an Intensive Settlement Conference, the divorcing parties and their attorneys spend a day in court trying to agree one last time. The judge is typically involved in facilitating discussions about what an ultimate outcome could look like for the family, although they aren’t allowed to make rulings or take final positions. 

During divorce, it’s key to remember that legal strategies are adaptable. You can change from mediation to litigation and vice versa. The New Jersey court system builds space for settlement-oriented discussion into the litigation process, so there’s opportunity to adjust as the proceedings take place or before they even begin.

After divorce 

While divorce settlements are final, the court system acknowledges that life changes may require a post-judgment modification for factors like child support and parenting time. Post-divorce mediation allows parties to discuss these changes and help families to arrive at a suitable solution for everyone involved. 

Again, navigating change post-divorce is complex, even under the best of circumstances. If you’re considering mediation for a post-divorce modification, it’s strongly recommended to work with a trusted divorce attorney who can help you find the best path forward for your family. 

Speak with a New Jersey Divorce attorney to weigh your options   

The attorneys at Jacobs Berger, LLC are experienced in helping clients with a wide range of family law-related concerns, including alternative dispute resolution.

To schedule a confidential consultation with an experienced team member today, contact us online or call our Morristown, NJ office at (973) 354-4506.

Contact Our Morristown Attorneys Today

At Jacobs Berger, our attorneys are experienced in protecting our clients across Madison, Randolph, Tewksbury, Morristown, and the greater Morris County area in all family law-related issues.

To schedule a strategic planning session with one of our experienced team members regarding your particular case, please contact us online or through our Morristown, NJ office at (973) 354-4506.