While most people have divorced friends or family members, few fully understand the process or available options to resolve a divorce. Viewing the options as a continuum from most cooperative and cost-efficient to most contentious and expensive, the options include: direct negotiation, mediation with two unrepresented parties, collaborative law, mediation with the assistance of lawyers, negotiation through counsel, arbitration, and litigation. This blog post will briefly address each option.
Direct negotiation. The concept of direct negotiation is self-explanatory. Some parties can discuss and resolve the terms of a divorce without the assistance of others. The court’s website provides all necessary forms to initiate and conclude a simple divorce. See https://www.courts.nh.gov/our-courts/circuit-court/family-division/forms/all-forms-alphabetical-order . Direct negotiation works well if the parties have a cordial relationship, equal bargaining power and few disputed issues. Aside from filing fees, the cost of an uncontested, directly negotiated divorce is negligible. Since each party speaks directly to the other, the risk of miscommunication is low. Direct negotiation does not work well in cases with significant disagreements, abusive behavior, distrust, lack of accountability or complex assets. All parties, even those who directly negotiated an agreement, would be well-advised to consult with an attorney before signing or filing a settlement agreement because divorce property settlements are generally not modifiable once approved by a court. An ill-advised or poorly drafted agreement may result in hardship that a court cannot remedy.
Mediation. In New Hampshire, the overwhelming majority family cases are resolved through mediation or negotiation, without a final hearing or trial. New Hampshire law requires all parents of minor children and most other people, absent unusual circumstances, to attend mediation.
Mediation is a private and confidential process used to help parties reach agreements. Mediators do not represent either party and a mediator does not have the authority to issue a binding decision. A mediator is a neutral person who facilitates a discussion between parties about needs, goals and solutions to help parties settle disputes. These discussions are confidential and not reported back to the court. Parties may attend with or without counsel. During mediation parties may meet together or in separate rooms. If parties are in separate rooms, the mediator will shuttle back and forth between the rooms to communicate settlement discussions.
Mediators may be court appointed or privately retained. Court appointed mediators may be legal or mental health professionals, law enforcement officers, or members of the financial industry. Court appointed mediators typically conduct two or more two-hour mediation sessions at a rate determined by the court. These sessions are scheduled at the convenience of the involved parties over weeks or months and usually occur at the court. The cost of a court appointed mediator is generally less than that of a private mediator, but cost should not be the only consideration.
Private mediators are selected by agreement of counsel, not appointed by the court. Such mediators are usually experienced family law attorneys or retired family court judges or masters. Rather than multiple two-hour sessions spread over weeks or months, private mediators typically schedule mediation for a full or half day in a private office. In most cases, with adequate preparation, all issues can be resolved in a single day. Private mediation is best for cases where both parties are represented by counsel and there are a variety of disputes or complex issues. In such cases, attorneys can exchange the necessary information in advance, prepare for the mediation, negotiate complex issues, and participate in the drafting and finalization of agreements on the day of mediation.
When a case is resolved through mediation, the parties often sign settlement documents on that same date or shortly thereafter. Courts usually review and approve divorce settlement agreements without the need for a hearing or appearance in court. The timeframe for approval of such agreements varies from court to court but is generally around one month from the date of filing.
Collaborative Law. The collaborative process is uniquely focused on interest-based resolution and open, respectful, direct communication, as opposed to arguments based on rights and demands. In collaborative cases, the parties, their attorneys and jointly retained professionals (i.e. divorce coaches and financial professionals) work as a team to resolve a divorce. A participation agreement disqualifies the professionals from representing the parties in court if the process breaks down and, therefore, incentivizes everyone to work toward resolution. All funds spent in the collaborative process are directed toward the resolution of the dispute. The team meets together in a series of short meetings, often four to six meetings, to cooperatively discuss all issues and resolve the divorce.
The collaborative process is dependent upon open and honest communication. It is ideal for parties who continue to trust each other and treat each other well, but do not wish to be married any longer. Parties are generally highly satisfied with the process. It is not ideal in cases involving mental illness, distrust, extreme anger, abuse or a history of financial deceit.
For more information on the collaborative process visit the International Academy of Collaborative Professionals (https://www.collaborativepractice.com ) or the New Hampshire Collaborative Law Alliance (https://collaborativelawnh.org/ ) or see: (blog post ______).
Negotiation between counsel. Decades ago, the two most utilized means of resolving a divorce were negotiation between counsel and trial. Negotiation between lawyers is now less favored, especially as an initial settlement strategy, as it is like a game of ‘telephone’ with the attendant time-inefficiencies and possibility for miscommunication or interpersonal difficulties. The other dispute resolution mechanisms generally offer faster, less expensive, and more direct means to resolve cases. Negotiation through counsel is still frequently used to resolve small, early or urgent issues in a case, but it is not commonly used as an initial approach to settle all issues in a nuanced or complex case.
Arbitration. Arbitration is a means to resolve a dispute outside of court, through a court-like process with a privately retained decision maker, usually a retired judge or respected family law attorney. Since the Constitution guarantees all citizens access to courts for resolution of their disputes, absent agreement, a court cannot order parties to arbitrate a dispute. Parties who participate in arbitration do so by agreement. Arbitration of family disputes is routine outside of New Hampshire. In New Hampshire, it is an available option but uncommon in the divorce context because the family courts are generally inexpensive, easily accessible, and timely. Arbitration is expensive because the process is privately funded and not part of the court process. However, it can be less expensive than litigation because it is faster than litigation. Arbitration also allows parties to select the decisionmaker and applicable rules, unlike litigation. Arbitration can be extremely beneficial for cases plagued by media attention, judicial delay or inaccessibility, where extra accessibility to a judicial officer is desired, where an expedited outcome is desired, or to ensure proceedings that might not otherwise be sealed by a court (i.e. that of a high profile litigant or public figure) are handled with extra care and confidentiality.
Litigation. Litigation is a complex and unavoidably adversarial process. A detailed discussion of litigation is beyond the scope of this blog post. However, in general, the litigation of a divorce generally takes 1.5-3 years and involves multiple court hearings, formal discovery (depositions, interrogatories, document requests, etc.), experts and, potentially, a trial at the end of the case. Courts are public forums. Hearings and documents filed are generally available to the public, unless protected by statute or sealed by the court. Litigation is necessary to resolve disputes that parties cannot resolve through other means. In some cases, litigation may be the only way to protect a party’s rights or obtain a fair result, however, litigation is an expensive and adversarial process that weighs heavily on the parties.
Courts make various efforts to encourage divorcing parties to settle. In cases with minor children, parents are required to attend two events that encourage settlement, the first appearance conference (see https://www.courts.nh.gov/our-courts/circuit-court/family-division/divorceparenting) and the child impact seminar (see https://www.courts.nh.gov/our-courts/circuit-court/family-division/child-impact-seminar). Courts routinely require divorcing parties to attempt mediation. For those cases that do not settle in mediation, courts often arrange for a further settlement event known as a neutral evaluation. Neutral evaluation is a confidential process wherein a judge who is not assigned to the case will listen to the arguments of both parties, opine on how they would decide the case and attempt to facilitate settlement discussions. Like mediation, the process is confidential, and the discussions are not shared with the judicial officer who is assigned to the case.
Most cases involve several of the above dispute resolution mechanisms. For example, a case may start in litigation, but resolve through mediation and negotiation. All cases are different and the best approach for each case must be decided based on the parties and the issues in each case.