Anyone who has seen the movie Kramer vs. Kramer shudders at the idea of a divorce trial. The heated confrontations, adversarial attorneys, rabid emotions, and ultimate poor trial outcome in the movie could scare many away from the divorce process. Yet, thankfully, the adversarial divorce trials that make for a good drama film are mostly a thing of the past. Nowadays divorce proceedings seldom conclude in a contested trial, where a judge determines what is best for the family involved. There is now generally an understanding that the best-equipped party to determine what is best for the family is the family itself. Thus, divorcing couples are encouraged to engage in various avenues of Alternative Dispute Resolution (ADR) in order to form a divorce agreement between the parties.
While this pleases judges by saving them the headache of making important life decisions for people they barely know, it is also more favorable to divorcees, who actually feel they are a party to the decision-making process. Thus, even if the end results are not exactly as they would have wanted, parties tend to feel they have contributed to the ultimate agreement, and are therefore much more likely to abide by it and feel content doing so. Truly, all parties benefit from a process which involves maintaining family relationships rather than pitting family members against one another.
If parties wish to go with ADR from the start, they may choose to prepare a petition for divorce, send it to the other party, but never file it with the court. This starts the process as far as notifying the other party, but it keeps the court out of it and lets the parties work at their own pace. If a petition is filed with the court, the court gets things moving and begins scheduling court proceedings.
If they go the route of not filing with the court, the parties are now left to take whatever course they see fit. This may be negotiations between the attorneys or the parties may choose to go to mediation, with or without attorneys present. They may eventually choose to get the courts involved on some level as well. There are many possible routes, with more or less focus on ADR, allowing parties to choose what best fits their situation.
In its many forms, ADR is common and greatly encouraged in family law. This is a trend that most attorneys and divorcing parties find to be beneficial and indeed a better fit than litigation for this area of law. It is likely that ADR will only become more commonly used in divorce proceedings, and this will lead to less adversarial divorces and hopefully more long-term happiness for the families involved.
Because of the variety of ADR options and the importance of this topic, this article shall be the start of a series on ADR in family law. The following blogs will cover more details and point out the various possible routes to take.