Alternative Dispute Resolution (ADR) is the term used to describe various processes to resolve conflict peacefully. It applies to those couples who sit down across the kitchen table and come up with their own agreement, to those who reach settlement with the help of a mediator, and to those who get there through the collaborative divorce process.
Following are a few conditions that must be present for any form of ADR to create a reasonable, lasting agreement that addresses the relevant issues:
1. First, full disclosure. It’s important that both parties have a thorough understanding of all assets, debts, information pertaining to the well being of the children, sources of income (including potential sources) and anything else relevant to a full and fair assessment of child custody, parenting time, division of property, spousal maintenance, child support, etc.
2. Each spouse must have an adequate understanding of his/her interests and needs (as well as those of the children). It’s also a good idea for each spouse to at least understand how a court would view the case, though they are not locked in to necessarily agreeing to terms similar to those which a court would order absent agreement of the parties. (One of the advantages of ADR is the freedom to make choices that go beyond anything the court would consider on its own.)
3. Good faith. This means that both spouses are open to discussing and considering all options. Neither is using the ADR process to prevent certain possibilities or to force a specific, predetermined outcome on the other.
4. If there’s a history of domestic violence or a dynamic in which one spouse is dominant, then this dynamic must be recognized and carefully, thoroughly addressed. Otherwise, what looks like agreement may, in fact, be capitulation. Sometimes collaborative divorce provides the necessary structure to address domestic violence since both parties are represented by their own attorneys. In some cases, additional resources must be brought to bear, such as coaches and/or the child specialist. And then there are cases where a power imbalance necessitates a litigation approach.
The bottom line is that it’s important for all issues to be fairly and reasonably addressed in light of all relevant information. ADR is not appropriate if either spouse is misusing the process to hide assets, hide income, incur debt, harm children, enforce his/her will on the other, drag out the divorce, prevent it from happening, obtain revenge or otherwise damage the other. ADR works only when both spouses are open to exploring options in a spirit of fairness. It’s not necessary for them to be in an easy or harmonious space. They may present with anger, fear, distrust or other challenging feelings. Well trained mediators know how to help people navigate conflict. The spouses must simply be willing to engage in good-faith dialog. If either spouse needs yet more support than mediation can offer, collaborative divorce provides for each to have his/her own attorney and also, when appropriate, for child specialists, coaches and financial professionals to be retained.