Alternative Dispute Resolution Pros and Cons | Moshtael Family Law Orange County

Pros And Cons Of Alternative Dispute Resolution

The Purposes of Alternative Dispute Resolution Methods

A significant percentage of the lawsuits filed in state court are family law cases. When you consider that more than half of American adults end up getting married and roughly half of those marriages end in divorce, it’s no surprise that the courts are brimming with family law cases. Furthermore, the scope of family law includes adoptions, child custody cases between unmarried parents, and paternity matters.

Family law cases originate at the trial-court-level. In California, the Superior Court of California sees most of the action in family law cases. However, California’s trial courts have been overwhelmed for decades. Budgetary issues for the state’s judicial branch don’t make it easy for the court to get through its often-backlogged dockets.

Enter: alternative dispute resolution (ADR). The California constitution and statutory laws and regulations recognize the need for alternatives methods to judicial resolution for handling legal disputes between parties. For many years, different ADR methods have been used to address family law issues in California, including mediation, collaborative law, arbitration, and temporary judges.

Mediation

Mediation is a form of ADR where issues are brought before a neutral third-party who facilitates cooperation between the parties to help them find a private settlement to which both can agree. The job of a mediator is not to make decisive rulings like a judge, but to help keep the parties on track while they work together to find a private solution to their dispute. A private mediator tends to be a retired judge or attorney. A mediator’s involvement depends on how much control the parties are willing to give the mediator. Ultimately, the parties have ultimate say and can generally walk away from private mediation at any time. Mediators have a fee that one or both of the parties agree to pay.

Pros:

Preserves the privacy of the parties
Potentially saves time and money in litigation and court costs
Foster cooperation and mutual compromise
Parties can utilize private legal counsel

Cons:

Not a cost-effective solution for very contentious cases
Parties can still end up in court
No temporary orders pending divorce

Collaborative Law

Collaborative Law is similar to mediation, as it is an ADR method that focuses on the common ground between the parties. Where private counsel can represent the parties and their interests above the interests of the other party, collaborative lawyers do not fit the conventional “adversarial” advocate role. Instead, collaborative lawyers represent the parties in a team effort to avoid future litigation. However, if the parties don’t reach a resolution through the collaborative law process and decide to litigate the matter, their collaborative lawyers are ethically disqualified from continuing to represent the parties in the subsequent adversarial litigation.

Pros:

Preserves the privacy of the parties
Potentially saves time and money in litigation and court costs
Fosters cooperation and mutual compromise

Cons:

Not a cost-effective solution for very contentious cases
Parties can still end up in court
Parties have to hire new lawyers if the case ends up in court
No temporary orders pending divorce

Arbitration

Arbitration is a form of ADR that is structured closer to a court proceeding where each party argues their case and a neutral party makes specific findings and rulings to resolve the dispute. Arbitration is less formal than court but more formal than mediation. In California, the parties may use private arbitration to reach a solution for their divorce issues. Arbitrators are not bound to follow case law precedent or the California Rules of Court or Civil Procedure. However, the parties agree to adhere to the decisions of the arbitrator without challenge. Arbitrators charge a fee that one or more of the parties pays.

Pros:

Preserves the privacy of the parties
Parties can utilize private legal counsel
Ends in a final judgment that is appealable in limited circumstances
Procedurally flexible

Cons:

Not a cost-effective solution for low-to-moderate income parties
Neutrality and experience of the arbitrator isn’t guaranteed

Temporary Judges

Also known as “judge pro tempore” and “private judges,” temporary judges sit in place of an official, full-fledged judge. Retired family law judges and family law attorneys can serve as a private judge in California. The parties can utilize the same procedures as they would in court, but in a more private space like a conference room, or a private residence. Temporary judges are bound by the same rules that full-fledged judges follow. As a result, the proceedings are formally similar to court proceedings, but the parties are not restricted to the court’s calendar and docket. Temporary judges charge a fee that one or more of the parties agree to pay.

Pros: