WHAT DIVORCE PROCESS IS RIGHT FOR ME? PART IV – ADR

The previous posts in this series discussed mediation, collaborative divorce, and litigation, and this post will continue with ADR.

ADR

The most popular models of ADR utilized in family law matters for individuals living in Greenwich or Westport are ADR mediation and arbitration.

In our practice at Broder & Orland, LLC, if the parties and counsel cannot reach a settlement, the next step before trial is often to participate in an ADR mediation. ADR mediation is not binding and the mediator does not force a party to sign an agreement. Each party has input into the process and the ability to walk away if he or she is not comfortable.

ADR mediation is similar to traditional mediation as the divorcing couple works with a neutral mediator, generally a retired Judge or seasoned family law attorney, who facilitates a comprehensive agreement on all issues related to the divorce including custody, alimony, child support, and division of property. The difference is that instead of each party working alone with the mediator, each party is represented by his or her own attorney during the mediation, which is typically a one day event. Furthermore, each attorney will prepare and provide mediation documents to the mediator and exchange with the other side in advance of the mediation. These documents often include a factual summary, list of legal issues, financial affidavits, and proposed orders. Each party is also entitled to submit confidential submissions solely to the mediator, which provide the mediator with additional insight into sensitive issues, without inflaming the other side prior to the mediation. This model has been successful because the mediators are experienced and skilled, the parties genuinely to want settle, and skilled attorneys know how to be creative to achieve his or her client’s interests instead of sticking to rigid positions.

Arbitration, unlike mediation, is binding and if a party does not like the result of an arbitration, his or her only recourse is to file a Motion to Vacate the arbitration award with the Court. The standard to Vacate is high, as a Court can only vacate an arbitration award if it finds any of the following: (1) the award was procured by corruption, fraud or undue means; (2) obvious partiality or corruption on the part of the arbitrator; (3) the arbitrator was guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown, refusing to hear evidence pertinent and material to the controversy, or of any other action prejudicing the rights of a party; or (4) the arbitrator exceeded his or her powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.

Arbitration is essentially a privatized trial in which the Arbitrator presides over a “trial”. Instead of the “trial” occurring in a public court room, the “trial” usually takes place in a private conference room with the Arbitrator, the parties, the attorneys, other witnesses, and a court reporter. The ground rules are agreed to in advance and must be approved by the Court for the arbitration award to be valid. Depending on the ground rules, each party may testify, offer exhibits into evidence, and each attorney may present closing argument. After the close of evidence, the Arbitrator will issue a written award, and then either party files a Motion to Confirm with the Court to have the award become an official judgment of the Court.

The advantages of arbitration are that the proceeding is private and the process is expedited unlike a court trial, and since the process is expedited, it is often more cost effective than a trial. At Broder & Orland, LLC, we had a matter scheduled for 15 days of trial, the parties agreed to arbitrate the matter instead, and the arbitration only took 3 days. Also, a Court has 120 days to issue a decision after trial, whereas the arbitration agreement could compel the Arbitrator to issue an award within 30 days. Further, even though an unhappy spouse could file a Motion to Vacate an arbitration award, and then appeal the Motion to Vacate, if the Court denies that Motion, the issues to be heard by the Appellate Court are considerably more limited compared to a party appealing a decision made by the Court. The major disadvantage of arbitration is that issues related to child support, visitation and custody cannot be arbitrated as a matter of law, which limits the types of matters that are eligible for this option.

Broder & Orland LLC, in Westport and Greenwich, Connecticut, offers experienced guidance in all types of divorce processes. Our lawyers take the time to understand the issues important to you and to create workable solutions that are most efficient and effective

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