Family law cases such as divorces, child support matters, and conservatorship proceedings, can often be characterized by highly charged emotions and intense acrimony between spouses. These attributes make family law proceedings challenging to handle using the conventional adversarial process of litigation.
Litigation can unnecessarily promote uncompromising attitudes that drive the parties further apart on vital issues. Consequently, intense family law litigation can be counterproductive and costly for the parties as their case drags on unnecessarily.
Fortunately, parties who are more open to the notion of cooperating toward a peaceful resolution of their case, based on mutual understanding and compromise, can take advantage of alternative dispute resolution (ADR) methods for their family law matters. ADR methods have the potential of saving the parties substantial time, money, and grief associated with litigation.
Family law cases involve a lot of sensitive information that the parties are interested in keeping private. Unfortunately, when a family law dispute goes to court, the public has access to a case’s record. Although the court may seal or redact personal information regarding juveniles and the parties, a decent portion of proceedings and their details are a matter of public record.
Mediation is one of the most popular ADR methods in use for family law cases in Texas and throughout the country. This method provides an informal forum where the parties can resolve their conflicts through private negotiation and settlement.
Plus, private mediation proceedings are not a matter of public record. The mediation process allows the parties in a divorce or other family law matter to privately resolve their grievances under the guidance of a neutral third-party acting as mediator.
Under Texas Civil Practice & Remedies Code § 154.023, mediation provides the parties with the following benefits:
- The parties have greater control over the pace and direction of proceedings and are therefore more responsible for outcomes
- Attorneys for the parties can participate in an advisory function for negotiations and proposals
- A neutral mediator facilitates cooperation and communication between the parties
- The mediator does not render an official opinion if the parties fail to compromise
The mediator’s role depends on the needs of the parties. Most mediators are experienced legal professionals familiar with family law litigation and negotiation, such as retired family law judges and attorneys. The level of a mediator’s involvement can range from merely overseeing the mediation process as a helpful guide on one end to actively coordinating between the parties, providing them with experienced insight and wisdom on each party’s concerns, goals, and decisions on the other end.
A mediator does not have the authority to issue legally binding orders and judgments. Importantly, successful mediation can save the parties thousands of dollars in litigation costs. However, if mediation fails to yield a settlement on the essential issues of the parties’ case, they will end up litigating those same issues in court. Consequently, failed mediation can be costly since the parties will have paid for mediation fees and costs in addition to the costs of subsequent litigation.
Divorce proceedings and other family law cases can benefit from the collaborative law approach to family law dispute resolution. The collaborative law process is similar to mediation in that proceedings are more informal than court hearings, and are also guided by an impartial third-party who facilitates cooperation and communication between the parties. The parties must enter into a collaborative family law participation agreement (CFLPA) with their collaborative lawyers to initiate the collaborative law process.
In collaborative law proceedings, the parties are represented by attorneys. However, collaborative attorneys do not approach a case with the same adversarial attitude as conventional litigators, who are ethically obligated to zealously advocate for their client’s interests.
Instead, collaborative attorneys work toward the harmonious and fair resolution of a legal dispute, favoring mutual compromise. The collaborative law team is not restricted to the parties’ attorneys and a neutral intermediary. Parties can benefit from the professional guidance of other family law professionals, such as social workers and licensed family therapists with experience handling the kind of issues affecting the parties’ case.
The collaborative law process suffers from the same drawbacks as mediation in that the entire process does not guarantee a comprehensive settlement of the conflict. After an unsuccessful shot at collaborative law proceedings, the parties might end up in formal litigation before the court, find themselves on the hook for the costs of both the collaborative law process and the ensuing litigation. Additionally, collaborative law attorneys are prohibited from representing the parties in subsequent litigation for the same issues addressed during collaborative proceedings.
The parties in a family law dispute can also submit to arbitration to resolve their issues. Like mediation and collaborative law, arbitration utilizes an impartial third-party to oversee proceedings, known as the arbitrator. Unlike mediation, the parties are positioned in a more adversarial stance in arbitration proceedings—the outcome of which contemplates the designation of a clear “winner” chosen by the arbitrator.
In non-binding arbitration, the arbitrator functions more like a mediator but can render an award that favors one party. While the arbitrator’s award is not binding in such cases, the winning party can use the outcome as a favorable jumping-off point for future negotiations.
In contrast, arbitrators in binding arbitration proceedings have the authority to render legally-binding judgments and awards, not unlike a judge would do in formal litigation. Both parties must agree to binding arbitration for an arbitrator’s award to have finality and legal effect.
While still less formal than conventional courtroom proceedings, arbitration is the ADR method functioning closest to the adversarial process of public courts. During arbitration, the parties can be represented by counsel, but the arbitrator is not bound by the rules of evidence and case precedent.
Consult an Experienced Attorney from O’Neil Wysocki
For more information about whether ADR is appropriate for your case, you should get in touch with an experienced Dallas divorce attorney at O’Neil Wysocki. We are committed to upholding you and your family’s best interests.
To schedule a consultation about the merits of your case, call us at (972) 852-8000 or contact our office online today.