What’s the first thing that comes to mind when you think of the word “divorce”? For many people, it’s a lawyer. And for good I reason–in most circumstances, it’s in your best interest to have a lawyer represent you during your divorce. But in some cases, the best method of getting a divorce might not be the traditional lawyers-and-courtroom method. Minnesota offers several types of alternative dispute resolution (ADR) available to divorcing couples. Here are some of the pros and cons of each.
Arbitration is, on its face, very similar to a court proceeding. You and your ex can each present evidence to a person called an arbitrator, and the arbitrator, who may even be a judge, will make a decision on whatever issue you are arguing about. The main difference from traditional divorce proceedings is that you and your ex are not represented by lawyers and you aren’t dependent on court availability for a hearing.
An arbitrator has the power to make a binding decision on your divorce. This means that if you don’t like the arbitrator’s decision, you are (for the most part) stuck with it, so proceed carefully!
There is a fee for an arbitrator, which is usually shared equally between you and your ex. This is still cheaper than both of you going to court with a lawyer, so arbitration can be a good cost-saving measure. You may also feel more in control of the proceedings, since you and your ex are able to choose the arbitrator. Plus, you won’t have to wait as long as you might to be fit in on a busy court calendar. However, the downsides to arbitration include the lack of anyone arguing for your best interest and the binding nature of the proceeding.
Mediation is resolution of the disputed issues in your divorce by a neutral third party. In Minnesota, this party is not required to be an attorney but often will be. Unlike arbitration, the mediator’s decision is not binding on you and your soon-to-be-ex.
Not only can mediation be a good idea in certain situations, it may even be a requirement. In some counties, like Dakota county, the court may order mediation of a particular issue even if the couple are represented by attorneys in their divorce. This is usually for issues that give rise to heated arguments, like visitation schedules or who gets a particular household item.
Mediation is not a good idea in some circumstances, such as when you suspect your ex may not be honest about his or her property, when there is abuse involved, when you do not feel comfortable with the mediator, or when there is a significant power imbalance between you and your ex. However, if you feel confident that your ex will be fair and honest, and you aren’t afraid of or intimidated by him or her, mediation can save you attorney fees, court costs, and time. If you do go through mediation and the mediator ends up drafting a memorandum of understanding regarding your agreements with your ex, keep in mind that it’s a good idea to have an attorney review this document before the court enters a final divorce decree.
If you want a judge to decide a particular issue but don’t want to wait for your county’s court calendar opening in 8 months, you can hire your own judge. This is expensive but can be a good idea if there is a time-sensitive issue and the issue is fairly well-defined (i.e., it won’t cost as much as asking your judge to decide a vague, open-ended question that might actually involve 5 or 6 smaller questions).
All of these types of ADR have both pros and cons associated with them. As an aside, note that most of these ADR methods can be combined in a mix-and-match sort of way, both with each other and with traditional courtroom hearings. So for example, you might want to mediate one issue, arbitrate another issue, and go to trial on yet another issue. If you’re unsure whether or not ADR is right for your situation, a good plan might be to consult an attorney first, explain the basics of your situation to the attorney, and ask whether the attorney sees any reason why you shouldn’t attempt a particular type of ADR.
Any questions feel free to either call or email Jkohlmeyer@rokolaw.com
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