Should You Consider Alternative Dispute Resolution for Your Divorce?
Dec 9, 2024 | Written by: | Share
You better watch out, you better not cry, better not pout, I’m telling you why …
No, not because Santa is coming to town, but rather because the judge in your case probably will not care.
All too often in family law cases, such as divorce, custody, support, etc., emotions run high and it is impossible to conceive that everyone involved does not want to hear every salacious detail of how you ended up here. Frequently, the “why” someone wants to be divorced is often irrelevant to the outcome, and that can be a very difficult concept to accept or understand. It can be very confusing to litigants who are repeatedly told that their case is fact specific/sensitive.
While judges are human, family law judges are bombarded daily with dozens (if not more) of litigants, each asking the judge to grant their requested relief and often disparaging the other side in the process. Judges are short on time, patience, staff, and in some circumstances even family law knowledge, particularly if they were recently appointed to the bench and did not practice family law. Your lawyer can do everything right and it does not mean that the judge will see it the same way or appreciate the nuance of family law and the intertwined issues involved in family law matters.
So what are you, as a litigant, supposed to do, and how can you protect yourself from these unknowns?
One way is to engage in alternate dispute resolution, such as mediation or arbitration. While those methods typically require paying an additional fee for the neutral mediator or arbiter to step in, the costs are often less overall and actually minimized in the long run by controlling the process.
While there are always exceptions, most cases do not require the filing of a formal divorce complaint right away. Rather, parties can enter into private cutoff agreements, which are akin to a divorce filing and which save time and money. Once a divorce filing is made, you are required to answer to the court on the court’s timeline, rather than your own. You are going to spend counsel fees asking for adjournments to be permitted to mediate (for example) rather than go to a court appearance. When examined overall, it is likely that spending money to mediate in the first instance would have been less than expensive than filing and being beholden to the court.
When mediating or arbitrating, you can customize the process and tailor it to your specific facts, needs, and circumstances. A court simply does not have the capacity or resources to do so. Alternative dispute resolution may require more money upfront, but, overall, it may save you significantly in the long run financially and emotionally.
Even the best judges in our state have a full docket and limits on how much time and resources can be devoted to your case. By electing alternative dispute resolution methods, you have the ability to have your case privately managed.
In the State of New Jersey, we are required to complete a certification by both the attorney and client prior to filing for divorce that say Alternate Dispute Resolution was discussed and explained. This demonstrates the level of importance of these tools, and rather than being pro forma, they should be something seriously considered.
Diana N. Fredericks, Esq., devotes her practice solely to family law matters. She is a Certified Matrimonial Law Attorney and was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters from 2015 through 2021, to the NJ Super Lawyers list in 2023 and 2024, and to the New Leaders of the Bar list by the New Jersey Law Journal in 2015. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email.
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Any statements made herein are solely for informational purposes only and should not be relied upon or construed as legal advice.