December 2009

The New Shape of Divorce Litigation

Author: Paula Magrini

The practice of Alternative Dispute Resolution, or ADR, is growing in popularity due to the constraints of the economy and the trend toward low-conflict resolution. In fact there’s less litigation and more negotiation in this hybrid method of resolving differences for divorcing couples. Couples can choose between mediation, collaborative resolution or binding arbitration to curb their legal expenses. Each of these approaches can save families thousands of dollars and relieve the stress and anger that typically accompany contested and drawn out litigation.

“Once a divorce case evolves into a trial, the price tag soars,” points out Bill Clark, partner at Clark & Stevens. “Couples with children need to ask themselves, ‘Do we want to spend this money on litigation or on college education and other critical family expenses?’” These days, most divorcing couples are dividing debt rather than equity, so avoiding steep legal fees is a priority.

Through mediation, both parties work with a mediator who acts as a neutral third party. Usually the mediator is an experienced family law attorney. The goal is to reach a negotiated settlement regarding the issues that matter most to the couple. There is less time spent in court and more time devoted to discussion. Typically, in child custody cases, a guardian ad litem is assigned to families to document pertinent information regarding their children. The guardian ad litem may spend hours visiting with school administrators, medical officials and other witnesses, along with visiting respective homes of the parents. This lengthy process is significantly reduced when couples choose mediation. Legal fees can also be reduced since they are often shared equally between the parties, although this issue can be made a part of the negotiations in mediation. The biggest advantage of mediation for divorcing couples may be that they usually reach an agreement which is far more tailored to their needs than a decision made by a Family Court judge.

Another related option is binding arbitration. In this case, the divorcing couple agrees that the arbitrator, once again an experienced family court attorney, will hear the issues via documents that are assembled and submitted or through a special hearing, similar to a trial yet much less formal. The arbitrator plays the role of judge and makes all decisions pertaining to the case. But the process entails far fewer hours and fees, and unlike a full-blown trial in Family Court, can be easily scheduled and quickly expedited. Like mediating couples, spouses participating in arbitration are likely to save on legal fees. An added plus regarding this scenario is that decisions made by the arbitrator are binding.

Collaborative resolution is a third alternative that allows divorcing couples to resolve their differences through a four-way negotiation between both parties and their respective attorneys plus various specialists. Examples of the specialists who could be involved are a child psychologist, financial planner or divorce coach. Family law practitioners estimate that collaborative resolution costs, on average, one-third the amount tallied in a litigated divorce case.

“It’s all the reviewing of files and individual meetings followed by the couples coming together for more reviewing with attorneys that drives the cost,” explains partner Robert Stevens of Clark & Stevens. “Collaborative resolution calls on the specialists to help consolidate issues and ultimately the hours of the case, so our fees are reduced.”

Stevens sees new opportunity for Clark & Stevens through ADR and the increase in the number of divorcing couples who are choosing alternative methods of resolution. “This new trend will allow us to accommodate more cases effectively over a shorter period of time,” he says. “And if we can reduce the overall stress levels for our clients, that’s an added plus during these economic times when tensions are already high.”

Both Stevens and Clark are certified Family Court Mediators. Clark is also a certified circuit court mediator and arbitrator. Stevens is a certified arbitrator with the American Academy of Matrimonial Lawyers. He’s been a fellow with the organization since 1993.

Clark & Stevens associate, Pamela Blackshire, recently participated in an Interdisciplinary Family Law training seminar in Atlanta and will expand her practice to include the increasingly popular approach of collaborative divorce resolution. Blackshire is a member of the Collaborative Law Task Force of the South Carolina Bar. She’s also a member of the International Academy of Collaborative Professionals.

For more information regarding alternative methods of divorce resolution,
please call Clark & Stevens at (843) 842-3500.

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