Litigation can be a resource-intensive endeavor, especially for family law cases. Family law courts are some of the busiest in Denton and Collin Counties as well as the country with overwhelming court calendars and judicial dockets. Consequently, family law cases can be scheduling nightmare for courts due to aspects of a case being spread across several months or even years.
In response, states—including Texas—have implemented forms of alternative dispute resolution (ADR) in an effort to unburden their courts from cases that could otherwise be resolved privately. Determining whether a type of ADR is appropriate for your case requires an examination of some of the different ADR approaches.
Mediation is an ADR method where the parties informally attempt to resolve their outstanding issues before a neutral third party known as a mediator. Unlike court litigation, the mediator does not render judgments or issue orders that legally bind the parties. Instead, the mediator helps the parties focus on the material aspects of their dispute. A family law mediator can be an experienced attorney, retired judge, certified mediator or anyone experienced in mediating. Typically, the parties will have counsel present during mediation.
The benefits of mediation are particularly accessible to parties who are willing and able to put aside their differences to find common ground on important issues, such as their property division, child custody and support, and alimony. A successful mediation will result in a private settlement between the parties. Consequently, only the terms of their agreement that are necessary for the court to render orders and only the salient issues of the case are a matter of public record. The details and negotiations that led up to the parties’ agreement remain confidential. Moreover, mediation potentially saves the parties thousands of dollars in litigation costs and attorney’s fees.
Depending on the circumstances, mediation typically lasts anywhere from a half-day to a full-day. The biggest disadvantage of mediation is that it may not be appropriate for acrimonious cases where the parties are diametrically opposed on most issues. Mediators are not cheap as they charge fees that are comparable to an attorney’s hourly rate. Importantly, mediation may not prevent the parties from ultimately resorting to litigation to resolve any outstanding issues. As a result, the parties will have wasted money in a vain attempt to find common ground since neither of them was willing to cooperate in pursuit of compromise.
Like mediation, the collaborative law approach is a form of ADR where the parties informally work together in an attempt to find a mutually beneficial resolution to their case. In collaborative law, both parties have a collaborative lawyer who represents their interests. Unlike the traditional adversarial approach to litigation, the parties, their lawyers, and members of their collaborative team will engage of a series of meetings wherein they discuss particular aspects of the divorce while sitting together in the same room. Like mediation, the collaborative law process fosters mutual compromise and cooperation between the parties.
The collaborative law process also preserves a higher degree of privacy for the parties when compared to adversarial court-based litigation. A successful collaborative law session will lead the parties to a private settlement, the terms of which will serve as the basis for a court’s orders in its final decree. While Collaborative Divorce is a newer type of ADR, early studies show that the divorcing parties tend to have more amicable relationships and a lesser need for court intervention or modifications in the years after the divorce.
Like mediation, collaborative law proceedings do not guarantee that the parties will avoid litigation. Again, cases, where the parties are too far apart on crucial issues, will not benefit from the collaborative law process if the circumstances of their conflict make litigation inevitable on most issues. Furthermore, collaborative lawyers are disqualified from representing the parties if the parties ultimately decide to go to court. Therefore, an unsuccessful attempt at collaborative law might cost the parties more than they save as a consequence of paying their collaborative team’s fees in addition to their litigator’s fees.
Similar to mediation, arbitration is a process of ADR where the parties advocate for their respective positions before a neutral third-party known as an arbitrator. However, unlike mediation, arbitration concludes with a definitive outcome. In contrast to mediators, an arbitrator can render specific findings on material issues associated with the dispute.
Arbitration is more formal than mediation and the collaborative law process, given the degree of finality that it provides. Arbitration is also more receptive to a more adversarial approach to resolving controversies. Importantly, the details of arbitration proceedings are confidential.
As with mediators and collaborative lawyers, arbitrator fees can be costly. The parties risk spending more money in arbitration with less procedural safeguards than a public court, such as a strict application of the rules of evidence. Unlike courts, arbitrators are not necessarily bound by legal precedent and statutory law on issues. This can be risky in binding arbitration because a binding arbitration agreement bars them from objecting to an arbitrator. The qualifications and conduct of arbitrators are governed by provisions in the Texas Family Code and the Texas Arbitration Act.
Family law cases can also be tried by a special judge. Special judges are similar to arbitrators in that they have the authority to make definitive rulings and the parties must first agree to try their case before them. Proceedings before a special judge are a little more formal than arbitration as their duties and obligations are identical to that of an official judge—they must apply substantive law and procedural rules the same way as an official judge. Many judges continue their judicial careers after retirement by serving as a special judge.
Proceedings under a special judge allow the parties to expeditiously resolve their case while benefiting from the legal protections afforded to litigants in court. The parties utilizing a special judge are not restricted by the court calendar and docket of an officially appointed judge. However, the parties must pay the special judge, making this option less attractive to some cases.
Consult a Dedicated Lawyer at Coker, Robb & Cannon, Family Lawyers
Whether your family law dispute can benefit from alternate approaches dispute resolution, you stand to benefit from the sound counsel and spirited advocacy of an experienced, professional attorney. At Coker, Robb & Cannon, Family Lawyers, our legal team can advise you about the appropriateness of ADR methods in your case.
Call us at (940) 293-2313 or complete our online request form to arrange a consultation about your legal rights today.