Divorce and child custody cases commonly involve litigation, but a court case is not the only method for resolving these matters. Connecticut couples can opt for mediation, the collaborative process, or private arbitration as an alternative to litigation. Each of these methods has unique strengths and drawbacks, and it is important to carefully consider which option is the best fit for your circumstances. 

How Mediation Works

With mediation, a neutral third party who has been trained in mediation techniques will meet with you and your spouse and facilitate discussions to help you arrive at a mutually acceptable agreement regarding all aspects of your divorce and/or custody matter. Mediators, who are usually but not always attorneys, do not provide legal advice or render a decision, but guide you in reaching an agreement. If the mediation is successful, your signed agreement will be filed with the family court, reviewed by a judge and made into a legally binding divorce decree. 

During the mediation process, you and your spouse may each choose to consult individually with an attorney. Your consulting attorney can advise you privately but will not be present in the mediation sessions. Your consulting attorney can provide guidance upfront and a list of potential mediators to help you start the process and, once you and your spouse have arrived at an agreement, your attorney can draft the necessary court documents. 

Unlike litigation, mediation typically takes place in a conference room, such as at a law office. If mediation is unsuccessful, the mediator is prohibited from representing either of you in subsequent court proceedings. 

Pros and Cons of Mediation

Compared to litigation, mediation is a less adversarial option that allows you and your spouse to control the outcome that will impact your family. Unlike court proceedings, mediation is private, allowing you to resolve your matter confidentially. Mediation often takes less time and is less expensive than litigation. 

However, mediation is not appropriate for all divorces. It may not be an appropriate process option in circumstances where one party is not willing to be transparent about financials, where one party is unable to make and adhere to agreements outside of the mediation session, or where there are interpersonal dynamics between the people that make it difficult for one person to articulate his or her thoughts for various reasons.  When considering mediation, one has to think about whether there is an imbalance of power or financial acumen among the spouses that would make it difficult for the parties to arrive at a knowing and voluntary agreement. People engaged in mediation must serve as their own advocate, and some individuals find it difficult to understand what’s being presented and make decisions in real time without having the support of someone by their side. Depending on their confidence level, personality, understanding of financials, and past communication patterns with their spouse, they may not feel comfortable articulating their own interests, questions, or concerns during the mediation sessions. Unfortunately, if mediation is unsuccessful, the parties will be back at square one, with nothing to show for their investment of time and money. 

How Collaborative Divorce Works

Like mediation, the collaborative process is a more constructive, less contentious alternative for resolving a divorce and/or custody matter. In the collaborative process, the spouses (or parents) are each represented by an attorney who is formally trained in collaborative techniques. The spouses and their attorneys commit themselves to resolving all the issues of their divorce and/or custody matter through negotiated agreement, without resorting to adversarial techniques or court proceedings. 

Spouses work with their respective attorneys to communicate their interests, identify concerns, set goals, develop options and reach a resolution that is acceptable to both parties. Where appropriate, the process may also involve input from neutral professionals, such as mental health counselors, financial planners or accountants. 

As with mediation, attorneys in the collaborative process are disqualified from representing the parties in future divorce litigation. This incentivizes the attorneys to facilitate an agreement, to avoid fostering conflict and to get creative in developing solutions that the parties can live with. 

Collaborative meetings are held in an informal setting, and once an agreement is reached, the attorneys will put it in writing, prepare court paperwork, and file the agreement to be presented for court approval. 

Pros and Cons of Collaborative Divorce

The collaborative divorce process has many benefits. It allows you and your spouse to have control over the outcome and to be creative in your problem-solving to arrive at solutions that both of you can live with. Because you are not relying on the court schedule, collaborative divorce is typically much faster than litigation, and you have more control over the timing of meetings. 

Due to its non-adversarial nature, collaborative divorce can be considerably less stressful than litigation. The reduction in hostilities may encourage you to establish a cooperative framework for future dealings, which is especially important for parents of minor children. 

Collaborative divorce also allows you to resolve your custody and financial issues in confidential meetings, rather than public court proceedings.

Unlike with mediation, your attorney is by your side at every meeting in the collaborative process, supporting you and helping you communicate your interests and concerns. This makes collaborative divorce a better option for individuals who do not feel comfortable advocating for themselves in mediation sessions. 

On the downside, the collaborative process is not for every divorce or custody matter. As disclosure of information is voluntary in the collaborative process, both parties must be willing to be transparent about financials as well as information that could affect the parenting of children. Further, both parties must be committed to the collaborative process for it to be successful. 

How Private Arbitration Works

Private arbitration is essentially a private trial. Rather than going to the family court, you and your spouse choose an arbitrator, who is a neutral third party. The arbitrator, who is typically a lawyer or a retired judge, will hear arguments presented by both sides, review documents, listen to witnesses and render a legally binding decision. Instead of a courthouse, the arbitration takes place in an agreed-upon private location, such as a law office conference room. Both parties are typically represented by their own attorney, who will prepare and present their cases in a similar way to how they would in family court. 

Pros and Cons of Private Arbitration

Relative to litigation, the main benefits of private arbitration are time savings and confidentiality. Litigation is dependent on the court schedule, and divorce trials must be booked months in advance. If two days are assigned for a court trial, and the trial is not finished by the end of the second day, it may take months for the third day to be scheduled. Since the inflexible court schedule is not a factor in arbitration, you have more control over the timing and your matter can typically be resolved much more expediently. And because it’s a private forum, all matters in an arbitration are kept confidential. 

Although it is a method of alternative dispute resolution, private arbitration is generally not more cost-effective than litigation. Even though the trial will likely take less time, you still must pay your attorney to prepare for and represent you at trial as they would in litigation. Plus, you and your spouse are on the hook for the cost of the arbitrator. 

It is advisable that you consult with a family law attorney with expertise in all methods of divorce. This professional can properly explain the process options and guide you in evaluating whether a particular process is a good fit for you and your circumstances.  

The collaborative divorce attorneys at Hartford law firm Ruel Ruel Burns Feldman & Britt have navigated a broad range of complex divorces and child custody matters in Connecticut, allowing for knowledgeable and compassionate representation. In addition to litigation and appeals, we represent clients in the collaborative process as well as in mediation and arbitration. We understand that this is a stressful time for you, and we are here to support you through all stages of the process. Contact Ruel Ruel Burns Feldman & Britt to discuss collaborative divorce or another family law matter. Call 860-206-9096 or click here.