August 16, 2018

GETTING DIVORCED WHAT ARE YOUR OPTIONS ? Part One

Alternative Dispute Resolution (ADR) consists of several different processes

all designed to resolve a dispute without resorting to “full-blown” litigation.  Avoiding litigation may result in less expensive, time, and bitterness that can accompany contested family law matters. There are pro’s and con’s  to each alternative method and the type of family law issue you are facing may well dictate the ideal alternative method for you and your family. You and your attorney will decide together, based on the issues of your case, which ADR option best fits your needs.

 

Note:    If you are headed to trial, most courts will order you to mediation first.

The various types of ADR methods are:

1.  Mediation

Mediation is encouraged in Texas and is, by far, the most popular form of ADR.  With mediation, the parties and their attorneys will jointly hire a trained, experienced neutral attorney- the mediator- who is typically paid equally by the parties. If the parties cannot agree on which mediator to use, the court can appoint one. The parties agree to a time, date, and place for the mediation.

 

Mediation generally commences with the mediator conferring with each party and their attorney in a conference.  The purpose of this conference is to educate the mediator on the factual background of the case, the disputed issues, and each party’s position as to those issues. The conference may be very brief, or it may last an hour or more. However, most mediators prefer to start the actual negotiations without lengthy delay.

 

The mediator will then begin to work with each side individually to develop offers and counter-offers, moving back and forth between parties until a settlement offer agreeable to everyone is written down and signed as part of a Mediated Settlement Agreement (MSA). A mediator cannot force a party to sign an MSA. However, once signed, the MSA is binding on all parties and only in very rare circumstances can an MSA ever be set aside. After all parties, attorneys, and  the mediator have signed the MSA, the MSA is presented to the judge for his/her signature as a short-hand rendition of the settlement which will, in turn, form the basis for the actual Decree of Divorce and other  necessary  court  orders.

 

The mediation process is confidential and testimony regarding events occurring during mediation is inadmissible in court.  The mediator cannot be called to testify at trial.

 

 

2.  Arbitration

Arbitration is the second most popular method of ADR.  This process involves an arbitrator- agreed upon by the parties- and then appointed by the court to act as a “private judge”. Payment of the arbitrator depends upon the agreement of the parties.

While arbitration hearings in family law matters are usually less formal than court  hearings they are still official proceedings and the arbitrator can administer oaths to witnesses and issue subpoenas. The arbitrator will, in an agreed upon matter, take evidence from witnesses and experts. Once all the evidence is presented by the parties and their attorneys, the arbitrator will issue an “award” (ruling). This award is then included in a court order which is signed by a judge, making the award an enforceable order.

 

 

NOTE:  An arbitration award may be “binding” or “non-binding” on the parties; however, once the arbitration award in a family law case is made, the court may refuse to enter the award if it is not in the best interests of the children.  

 

 

3.     Informal Settlement Conference

The parties in a divorce suit may agree to one or more informal settlement conferences and may be conducted with, or without, the presence of attorneys and/or mediator.

 

Any written settlement agreement reached in an informal settlement conference is binding on the parties if the agreement (1) prominently displays in boldfaced type or in capital letters or underlined that the agreement is not subject to revocation; and (2) is signed by each party to the agreement; and (3) is signed by the party’s attorney, if any, who is present at the time the agreement is signed.

 

If the court finds the terms of the informal settlement are just and right, those terms are binding on the court.  If the court approves the agreement, the terms of that agreement shall be incorporated into the final decree of divorce.

 

 

Source of this information is from the Family Law Section of the State Bar of Texas

 

 

 

Alternative Dispute Resolution

 

Once both parties have all the information they need to make informed decisions, most courts encourages parties to work through their differences without going to trial.  If spouses cannot come to an agreement on their own, professionals  are available to provide mediation or arbitration services which are more fully discussed in Chapter IV, “Getting Divorced – What Are Your Options ?”

 

Source: This information is directly from the Family Law Section of the State Bar of Texas

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