Why should you consider Alternative Dispute Resolution? You may think you know what to expect in court from the internet or anecdotes about other divorce or custody cases. In fact, these expectations are usually wrong, and here’s why.
Family law is almost all state law, and varies from state to state. In Pennsylvania, the central purpose of the Divorce Code, which controls alimony and equitable distribution, is to “effectuate economic justice,” (make it financially fair) and the standard for child custody is to serve the child’s “best interests.” What could be more subjective?
Like all of us, judges have their own ideas about what is fair and what is in a child’s best interests, and they may not line up with yours. Some judges are influenced by ideas about gender roles or feelings about litigants that may have no rational basis. It is impossible to reliably predict what will seem important to a judge, and whom a judge will believe. Which county your case is in can also matter a lot, since counties have their own rules and procedures, and judges who work together often seem to think alike.
Your lawyer may shed some light on what to expect from a particular county or judge, and can help you guess what the law and facts may mean in your case. No attorney, however, can tell you what is going to happen, how things will be resolved, and what it is going to cost. The only way to control the outcome and expense of any case is to settle it. Settlement negotiations are common in a court case where both parties feel the threat both of an unfavorable decision and the huge expense of trial. However, negotiation under threat is rarely the way to the best result.
Some people can sit down and work out the details of dividing one family into two, and may need an attorney just to process the paperwork. However, divorce is unlike any routine arms-length transaction, and most people could use some help. A neutral mediator may be able to help you overcome obstacles in your negotiation, but cannot provide legal advice or prepare and file the documents you need to finalize your divorce. Collaborative law combines the best features of mediation and standard adversarial practice to help you, sometimes with the help of consultants and/or coaches, identify the best way to meet the needs of both parties and your children with the resources that are available, and then to make it happen.
Alternative dispute resolution isn’t always the answer, but whether it might be should always be one of your first questions.