ADR, short for “Alternative Dispute Resolution,” is any method of resolving disputes outside of court. But what is ADR in the divorce and family law context? How does it work?
Read on to learn more.
What Does ADR Mean in Divorce?
There are two main ways to think of how ADR is most commonly used in Connecticut. Either a form of ADR is used for (1) the approach to the divorce itself, or it is used as (2) a tool to reach out-of-court resolutions during a divorce litigation.
What Issues Can Be Resolved via Alternative Dispute Resolution?
ADR can be used to help spouses reach resolutions on some or all of the issues that need to be divided in a divorce.
Generally, those are:
How Does ADR Work as an Approach in Connecticut Divorces?
In order to understand how ADR works as a divorce approach, you first need to understand the main Connecticut divorce types.
There are three basic divorce options available in Connecticut.
Mediation and collaborative divorce are themselves forms of ADR. Both processes are designed to support the spouses make decisions on their own, outside of court.
On the other hand, litigation is the default — a divorce where the spouses did not select one of the two ADR approaches to divorce.
However, our divorce attorneys like to divide litigation into two types, low- and high-conflict. Divorce litigations are low conflict when they resolve outside of court thanks to ADR. Litigation is high-conflict when the spouses are unable to reach agreements and a judge must rule. Ultimately, roughly “95% of couples” resolve their divorces outside of court. In other words, ADR plays a key role in the vast majority of divorces.Freed Marcroft’s lawyers practice in all of the divorce types because we’ve learned that some options will work better for you depending on your goals.
Mediation & Alternative Dispute Resolution
Mediation is a form of alternative dispute resolution where divorcing couples meet with a neutral mediator. The mediator guides their conversation and helps them engage in a constructive dialog. If Freed Marcroft serves as your mediator, your mediator will be a lawyer with extensive divorce experience. However, your mediator will not act as you or your spouse’s attorney or advocate. Instead, the mediator helps spouses brainstorm and reach mutually beneficial agreements.
Collaborative Divorce & ADR
In collaborative divorce, spouses meet with specially trained collaborative divorce attorneys and other professional members of the collaborative team. Collaborative attorneys help both parties negotiate and agree on the terms.
Litigation & Alternative Dispute Resolution
Divorce attorneys also use ADR as a tool to help spouses reach out-of-court agreements in litigation. These come in many forms. For example, the court provides some ADR options. There are also many private ADR approaches — including everything from negotiation between the two lawyers to private mediation.
Negotiation Between Divorce Attorneys
The most common form of private alternative dispute resolution in divorce litigation is negotiation between the two attorneys. While the settlement discussions may take place entirely between the lawyers, clients will ultimately make all the settlement decisions.
Read: Settlement & Divorce
Four Way Meetings
Next, the “Four Way Meeting” is another ADR tool that experienced divorce attorneys may recommend. A Four Way Meeting is a conversation with both spouses and lawyers present.
Less frequently, litigation counsel will recommend bringing in a private mediator. This often happens towards the end of a divorce. The goal is to for the mediator to help the parties resolve their outstanding issues and avoid a trial. Generally speaking, the parties’ litigation attorneys actively participate in this type of mediation.
Read: What Is a Divorce Trial?
Arbitration is a common ADR approach in some areas of the law, but it is less common in divorce. Like the other ADR tools, arbitration seeks to resolve issues outside of court. Spouses can decide to arbitrate the issues in their divorce (including property division, alimony, and as of recently, child support and custody).The other types of ADR we have discussed, which are designed to help parties reach their own resolutions. By contrast, in an arbitration, the arbitrator decides — much like a judge in a hearing or trial. Arbitration occurs only if both spouses agree to it.
Arbitration is often used to resolve disputes about personal property. Basically, personal property includes everything from jewelry to clothing to furniture and nearly everything else you own, except real estate and the fixtures attached to real estate.
Although personal property is rarely divorcing spouses’ largest asset, it creates emotional and practical concerns. If spouses aren’t able to decide how to divide their personal property, sometimes they’ll select an arbitrator to decide.
Read: Arbitration & Divorce
Court-Sponsored Alternative Dispute Resolution
In addition to all of the private ADR tools, the Connecticut Judicial Branch also sponsors multiple ADR options. In other words, the Court helps spouses resolve issues without needing a judge to decide. Some of the court-sponsored ADR methods involve judges, others involve other court personnel or volunteers.
Pretrials are classic form of alternative dispute resolution provided by the court. A pretrial conference is a settlement meeting required by the court. Otherwise put, a pretrial is when the court brings the parties together to assist them in deciding how to resolve their disputes themselves.
There are two types of pretrials in Connecticut divorces, special masters pretrials and judicial pretrials. In both, professionals experienced with Connecticut divorce law are there to help the parties reach an agreement. For a judicial pretrial, that person is a judge. In a special masters pretrial, one or two experienced divorce lawyers volunteer their time to assist spouses in resolving their disputes.
Family Services ADR
Family Relations is a service provided by the Connecticut Judicial Branch to people working through family law matters like divorce and custody actions. It is also referred to as Family Services. Its Family Relations Counselors are typically social workers or attorneys trained to resolve disputes. They provide three main types of ADR services:
- Pre-trial Settlement Negotiations – Family Relations Counselors conduct pre-trial and final judgment settlement conferences with attorneys and parents in conjunction with certain family court hearings.
- Mediation – Family Relations Officers provide some mediation services for parents with custody and parenting access disputes.
- Conflict Resolution Conference – Parents and attorneys meet with Family Relations Counselors to try to resolve custody and parenting access. If the parties are unable to resolve their dispute, the Family Relations Counselor may offer recommendations to the parents at the conclusion. (These recommendations are not shared with the Judge.)
At Freed Marcroft, we have helped hundreds of people move forward to a better life. At our first step, the Goals & Planning Conference, we start by guiding you through a process to figure out your goals. If you decide that divorce is part of what you need to do to get you to the future you want, we can help you. If it isn’t, we will support you and help you figure out what you need to get you there instead. Let’s keep you moving forward.