Court Is Tough, but Divorce Mediation-Arbitration May Help
I was awaiting an oral argument before the appellate court in my 6th year of a divorce proceeding.
Arguing before the appellate court is what lawyers live for. First, the courthouse is stunning. Second, the justices give the lawyers their undivided attention. Third, the process is efficient—lawyers only get 15 minutes each to argue their case.
But imagine the amount of time, energy, emotion, and money it took over six years (six years!) for the couple involved to get a divorce to the appellate division.
Most people who go through a divorce can’t afford to take a case there. Nor should they try.
In most cases, what they need is a chance to be to be heard, respected, and given a fair chance, just as they would in the appellate division—but without spending so much time and money.
That’s why I have begun recommending an emerging option that can keep couples out of the court system, even when mediation reaches an impasse.
It’s called divorce mediation-arbitration, or divorce med-arb.
To understand this option, and if it’s for you, you first need to understand what happens when your divorce goes to court and why costs spin out of control.
In most cases, paper-focused litigation wastes the divorce budget.
A divorce that goes through the court system, sometimes all the way through an appeal, burns through money because it’s awash in paper-focused litigation.
In litigation, one side pushes, the other side defends or pushes back, and most of this pushing is done on paper. It starts with emails the attorneys send each other. Then it escalates to applications attorneys make to the court to pre-frame issues that the court will decide about. The other side is forced to defend itself or capitulate, using more paper—and, of course, more time and money.
If you are stuck in the paper-focused-litigation divorce stage of a divorce, the idea of getting divorced without spending a fortune is hard to imagine.
The Siren Call of Hyperactive Divorce Mind is the Courthouse.
In most cases though, getting your divorce resolved by the court is not necessary.
So why do people keep heading for the courthouse to get divorced? Most often, it’s because of the hyperactive divorce mind.
You might have met your hyperactive mind at the beginning of the marriage, when you were buying an engagement ring and planning a wedding ceremony.
The hyperactive mind tells you to go big or go home. And it’s so persuasive it makes us believe that the more we spend on an engagement ring or on the perfect wedding ceremony, the better the chances that the marriage will succeed. It’s not logical, it’s “romantic.”
Then, when things don’t work out, the very same hyperactive mind says that the only way to get what you need and deserve in the break-up is, once again, to “go big.” Fight harder. Bring out the premium-priced legal team. Take things all the way to the Court of Appeals if necessary.
Logistical mind to the rescue. Thankfully the logistical mind has power over the hyperactive mind.
The logistical mind understands that if I am financially stressed out buying such an expensive engagement ring or emotionally stressed planning a huge wedding, it’s extremely difficult to give the love I need to make my future spouse feel supported, cared for, respected, and needed—which is the foundation for a successful, intimate relationship.
If all I will be feeling is anxiety and stress, and I’m projecting this anxiety and stress even without my awareness, it may make more sense to buy an engagement ring that I can afford and plan a stress-free wedding ceremony.
There can always be an upgrade to the ring, and future parties as the relationship and bank account mature and evolve.
What does the logistical mind tell you in a divorce? That you’ll need time, money, and emotional energy to build your new life.
“Going big” on the divorce by going to court with legal guns blazing may feel great in the moment, but if you do it, you’ll be draining away the resources you’ll need for the happy new future you want and deserve.
The logistical divorce mind sends you to mediation.
In classic divorce mediation, a professional trained in resolving conflict helps the couple work through their issues in a constructive way.
Mediation is great—but it doesn’t always work.
If the parties are unhappy with the process, they can quit. They can also manipulate the process to buy time or gather information.
If you try it and run into a roadblock and feel like quitting, realize that if you find yourself drawn to court, it may be your hyperactive divorce mind kicking into gear.
The hyperactive divorce mind is the voice in your head telling you to hire an aggressive attorney to push so you will get your way. The hyperactive mind doesn’t mention that if you push, your spouse will push back, and an expensive battle will escalate.
Then you may be in for a multi-year court battle where the only “winners” are the attorneys who not only keep the income flowing but get a chance to argue in the appellate division, which is like flying on a private jet—that you are paying for.
There has to be another way—and there is: mediation-arbitration
If mediation alone isn’t working, and only your hyperactive divorce mind thinks it’s a good idea to go to court, what option do you have?
Mediation combined with arbitration.
When mediation stalls, it’s often because your hyperactive divorce mind isn’t able to make the necessary decisions for a divorce resolution. Mediators can help you and your spouse lay out your needs and concerns, but they’re not in a position to make a decision for you.—and sometimes you just need a decider, someone to say “tktktk” or “tktktk” when you and your spouse cannot agree.
Judges are expensive deciders. But fortunately, they’re not the only ones who can take that role. In divorce mediation-arbitration—divorce med-arb- your mediator, who has heard and guided your negotiations, can act as an arbitrator and make a final decision when you can’t. You can also retain a third party to act as the arbitrator.
There is no reason you need to spend your children’s college savings and years of your life in court. You can have your voice heard in divorce med-arb.
Five things to know about divorce med-arb.
1. What is divorce med-arb?
Divorce mediation-arb is a process in which a mediator helps spouses reach an agreement on the terms of their divorce, and serves as an arbitrator to make a binding decision if they are unable to reach an agreement themselves
2. Why is divorce med-arb beneficial?
Divorce mediation-arb is beneficial because it can help spouses reach an agreement without having to go to court, and it can provide a more efficient and cost-effective way to resolve disputes.
3. How does divorce med-arb work?
In divorce mediation-arb, a mediator first meets with the spouses to help them identify the issues that need to be resolved. Then, the mediator helps the spouses negotiate the terms of their divorce, just as in regular mediation. If the spouses are unable to reach an agreement, the mediator makes the decision, which is binding.
4. What are some advantages of using divorce med-arb?
People who use divorce med-arb avoid the cost and time of going to court and have a more efficient and effective way to resolve disputes.
5. What are some disadvantages of using divorce med-arb?
Divorcing people using divorce med-arb have limited ability to appeal binding decisions they don’t like, and arbitrators may provide only limited reasons for the decisions they make. Divorce med-arb can’t currently be used to decide custody issues.
In conclusion, divorce med-arb may be a beneficial option for couples who are unable to reach an agreement on their divorce, want to protect the divorce budget, and need a decider.
Corey M. Shapiro is a New York divorce lawyer, arbitrator, and mediator who has helped thousands of people make better decisions in their divorce. He is also the author of an eBook for the greater divorce community.