Which of the Divorce Processes is Right for Me?

Now that we have outline the various alternatives (Divorce Litigation, Arbitration, Mediation and Collaborative Divorce)—how do you choose what is right for you?

The first thing to remember is that the choice is not yours alone.  For mediation and Collaborative Divorce, your spouse needs to sign off on the process.  That means having an honest, direct conversation with your spouse about your desire to pursue an alternative process is key.  One of the worst things that can happen is for your spouse to speak with a “Divorce Litigator” before discussing the options with you, at which point they may be past the point of no return.

Assuming your spouse is agreeable to consider the alternatives, you need to think realistically about what you BOTH want/need from the divorce process and the ultimate resolution.  You BOTH need to feel comfortable.  You BOTH need to be content with the choices you make.  Forcing an alternative on your spouse is not the answer.

Among the factors that you can consider:  (a) whether there are relationships that need to be preserved, (b) whether you and your spouse are able to negotiate effectively alone or whether you require/desire the assistance of counsel, (c) whether you need a binding decision from a third party and (d) how quickly you need to resolve the matter.

Mediation is often the quickest alternative, but it would require the parties to be comfortable with negotiating without the assistance of counsel.  Collaborative Divorce is an improvement over mediation where the parties are uncomfortable negotiating directly with their spouse, although it does come with an increased overall expense. Both of these options tend to be beneficial for ensuring continuity and perseverance of relationships in the long run.

Arbitration and Litigation offer the parties the ability to obtain binding determinations from 3rd parties—with arbitration being the better alternative for couples who can afford the added expense because it offers privacy and more control over scheduling.  Both of these options, however, still invite the parties to try to cooperate and mediate, while resulting in increased costs and animosity.

Ultimately, try to answer these questions and the best option for you and your spouse should be clear: 

(1) Can we work together to find alternatives and solutions that work for both of us?

(2) Do we need the assistance of our own lawyers to aid us in the negotiations?

(3) Do we want to make every effort to resolve our case while preserving our relationship?

David Cardamone