Mediate, Collaborative Divorce or Litigate:  How to Get a Divorce After Covid-19

When the New York courts reopen in the aftermath of the Coronavirus, expect them to be overwhelmed with a rash of new filings to be added to the already overflowing court dockets.  The consequence, all litigated divorces will be delayed.  For a faster resolution of your divorce, you may want to consider either mediation, collaborative divorce, or some other method alternative dispute resolution.

Mediate or Litigate

A universal benefit of the alternative dispute models, like mediation or collaborative divorce, is that you maintain complete control over the settlement terms.  In a divorce litigated in court, the parties surrender control in the outcome to the judge.   While well-intentioned, every judge comes to the case with a set of biases, beliefs, and experiences.  The judge's knowledge of your case is limited to the evidence he/she hears or sees.  When your case is over, the judge moves on his/her next one. The judge does not have to live with the consequences of his/her decision, but you do.

The vast majority of litigated cases settle at some point resulting in a negotiated settlement.  However, even interim rulings or off-the-cuff comments by the judge can skew negotiations and the result of a case.

In the aftermath of Covid-19, it is uncertain how the New York courts will handle the backlog of cases or how, faced with the need for social distancing, the courts will handle conferences or motions. On the other hand, alternate dispute methods are well suited to socially distanced in-person meetings or even virtual meetings.

Types of Alternative Dispute Resolution in Divorce

In negotiated case, you have control over the outcome. Mediation or collaborative divorce all contemplate an agreement between the parties reached out of court.

What is mediation?

In divorce mediation, a couple works with a neutral mediator who helps both parties reach an agreement on all aspects of their divorce. The mediator may or may not be a lawyer,  The mediator will not advocate for either party, but will guide the parties to any agreement- good or bad;  there is nothing worse than a bad divorce settlement agreement.  The mediated resolution may be very different from what a court would have awarded the parties after a trial.

Because it is not the role of the mediator to educate the individual parties as to their respective rights, both parties must consult with their own respective attorneys before and during the mediation.  The attorneys should review the settlement agreement before it is signed.

What is Collaborative Divorce?

In a collaborative divorce, the parties and their attorneys collectively meet to resolve all the issues of the divorce.   The goal is to collaborate" together to achieve the best possible result for all.

The collaborative four-way meeting may also include other neutral professionals such as an accountant or divorce financial planner for the economic issues and a parenting coach or therapist for child custody and other emotionally charged issues.

To begin the collaborative process, all the participants (attorneys and clients)  agree, in writing,  that there will be no litigation.  If either party even threatens to go to court, the collaborative process ends and both attorneys must withdraw from the case.  Neither party can use their collaborative attorneys in court.

Pros and Cons of  Mediation and Collaborative Divorce

Both mediation and collaborative divorce have advantages and disadvantages:

Advantages of Mediation and Collaborative Divorce:

  • Both mediation and collaborative divorce may be more efficient than litigation.
  • The parties have complete control over the outcome.
  • Both processes are less adversarial and contentious, which could result in a better post-divorce relationship.
  • Sessions can safely be in-person, socially distanced, or virtual.

Disadvantages of Mediation and Collaborative Divorce:

  • Discovery is limited, making it hard to value and address complex financial issues.
  • Not viable in cases involving domestic violence or substance abuse.
  • Without the intervention of mental health professionals, mediation and collaborative divorce could reward power imbalances in relationships.

In my practice, we employ all of the methodologies to help our client achieve their goals.    If you are considering a divorce, please contact us to set up a consultation.

 

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