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10 Questions Alternative to Litigation

Alternatives to Litigation - by Melinda J. Markvan


        You and your spouse discussed getting a divorce, but you cannot agree on everything.  One of you is pressing for something, and the other won’t give in.  You’ve talked to friends, family or attorneys, and despite your best efforts, you’ve made little or no progress.  At this point, litigation seems to be the only way to go, or is it?

         Keeping your divorce out of Probate Court can save time, money, preserve relationships, and reduce stress.  The alternatives to having the Court decide your issues are gaining momentum in Massachusetts. Experienced family law attorneys all over the Commonwealth are advising their clients of the benefits of arbitration, mediation and collaborative practice.  In fact, new legislation is being discussed to create statutes specifically geared toward family law alternatives to litigation.  Can you benefit from alternative dispute resolution?



         In arbitration, the arbitrator acts as the judge and decides the outcome.  Ahead of time, the parties agree to participate in arbitration and select their attorneys and arbitrator.  Arbitrators are usually retired judges or experts in family law.  Unlike mediation, arbitration is an adversarial process, and the parties do not usually walk away friends.  Attorneys present evidence supporting each party’s position.  There are exhibits, witnesses and rules of procedure much like a trial. However, arbitration is much more informal than litigation, which means much lower legal fees than litigation.  Parties are able to schedule their arbitration rather than waiting for the court’s schedule.  In some cases, parties need to wait over a year for a trial date in court and a final decision can take months after the trial.  Litigation can take years, while arbitration has a much shorter timeline.



         Mediation is a process in which a mediator is a neutral party who helps the two spouses arrive at a mutually agreeable resolution.  Unlike a judge or arbitrator, a mediator allows the parties to make their decision.  The mediator facilitates the conversation between both sides, geared toward reaching an agreement.  Only the two spouses and the mediator are present during the mediation sessions, so it is often beneficial to consult with an attorney before and after mediation to protect your rights. 


Collaborative Practice

         Like mediation, collaborative practice (conciliation) requires both parties to want to reach a mutually agreeable resolution.  Each spouse chooses his or her own attorney, and attorneys and spouses, come to the table together and negotiate until an agreement is reached.  Some judges inMassachusetts refer cases to conciliation to appear before a conciliator who acts as a mediator at no cost to the parties.  Unlike mediation, parties and their attorneys meet with the conciliator to reach an agreement.  The conciliator is usually a family law attorney who is trained in collaborative practice.  Collaborative practice is becoming widely used by family law attorneys when one side is not represented by counsel. The parties remain in control of the timeline and maintain their privacy by airing their disputes outside of court. 






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