As in many states, divorce in Texas is increasingly being resolved through alternative dispute resolution. Alternative dispute resolution allows parties to resolve disagreements without the need for formal court appearances and litigation. Alternative approaches to divorce in Texas include divorce mediation, collaborative divorce, and divorce arbitration. Many people ask what the difference is between these methods.
Divorce in Texas aided by mediation
Mediation encourages parties to work together toward resolution, rather than the traditional divorce model that favors the adversarial process. In fact, many judges may order mediation when parties have disagreements regarding children, provided there is no history of domestic violence. For this method a mediator assists the parties in coming to a resolution that is equitable for both parties, making possible a much more peaceful divorce.
A divorce mediator is always a neutral third party who does not make any final decisions or advise parties. A divorce mediator does not have to be an attorney, but can be a divorce financial planner, social worker, psychologist, or marriage counselor.
The mediator is chosen by agreement of the parties. In divorce mediation the parties may be able to come to an agreement without the need for an attorney; however, hiring an attorney to handle the filing and drafting of the divorce decree is always advised. The mediation model is flexible in that it can work well within a litigated case or as an independent event.
Collaborative divorce provides the newest of the alternative dispute resolution techniques to be used in Texas. In a collaborative divorce the parties must sign an agreement to resolve their divorce without litigation, securing their first step toward a peaceful divorce settlement.
Although both sides typically hire attorneys, information is exchanged without the need for a formal process. A series of meetings and deadlines are used to ensure an efficient process. Like divorce mediation, collaborative divorce encourages the parties to work together in a cooperative manner.
Unlike arbitration or litigation where one person makes the final decisions, the collaborative method requires the parties and their attorneys to solve disputes without court intervention. Should the collaborative process fail, parties are required to start the divorce process over with new attorneys.
Divorce arbitration is most like the traditionally litigated dissolution of marriage. The arbitrator (often a retired judge or attorney) serves as the acting judge and will listen to evidence and supporting testimony from both sides, after which he or she will make a ruling.
Divorce arbitration can be binding or non-binding. The parties must agree beforehand whether the arbitration will be binding and who will be hired to arbitrate. Since arbitration works much like traditional litigation, parties should hire attorneys to represent them through all phases of the arbitration process.
The advantage of divorce arbitration is that it is faster, more efficient, and affords more privacy than courtroom litigation, relieving some of the stress divorce can produce. However, unlike divorce mediation and collaborative divorce, divorce arbitration does not strongly favor a cooperative approach by the parties.
When preparing for divorce in Texas, parties should consider alternative dispute resolution – divorce mediation, collaborative divorce, and divorce arbitration.
Mediation and collaborative divorce are good alternatives for parties who are amicable, parties with children, and other parties who will need to work together in the future.
Arbitration is a good option for parties with more complicated and contested property and asset division, but for whom speed and privacy are important.
Amy G. Fearnow, J.D.