Currently, the courts in Virginia, Maryland, DC, and all around the country have been essentially closed for all but emergencies and are not hearing civil cases on a regular basis (which includes family law cases). Even when the courts open again, there will be a major backlog of cases – everything that was supposed to be heard from mid-March through the end of the shutdown, the full schedule of cases set to be heard before the pandemic, plus a glut of newly filed cases on top of that. The litigation process in family law matters can take up to a year and may be longer once we return to our “new normal” as courts struggle to catch up.
The good news is you have other options! Alternative dispute resolution can be a great option in family law cases, and you can get started right now. The better news is, you retain more control of the process. Once your case goes before a judge, you are stuck with a decision being made by a person (the judge) seeing only a snapshot of your family, and your children, over the course of a few days in a courtroom. Through alternative dispute resolution, you can get creative with solutions that work for you, for your spouse or co-parent, and for your children. It also allows you to retain some privacy in the process. Unlike court hearings, the alternative dispute resolution process does not become part of a public record.
When it comes to alternative dispute resolution in family cases, you have many choices. Some of the most effective processes are settlement negotiations, mediation, and collaborative law.
Just because you can’t get a court date doesn’t mean you can’t work toward a resolution. Your attorney can help you create a settlement agreement and negotiate with your spouse (or his/her attorney) to come up with a solution that works for you, settling some or all of the issues in your case. Once you have a settlement agreement signed by both parties, which is a fully enforceable, binding contract that both parties have to abide by, the next step of finalizing an uncontested divorce through the court is much faster, easier, and cost-effective. Most courts are still processing and finalizing uncontested divorces during the shutdown, as no court appearance is required.
Mediation is a process that uses a neutral third party to facilitate negotiations with the goal of reaching a settlement agreement. Often, the process uses a retired judge, experienced in family law matters, who will meet with you and your attorney, with your spouse and his/her attorney, and/or with all parties together, if necessary. This process can be done entirely remotely, using Zoom (or another platform). You and your spouse/co-parent don’t have to be in the same geographical area, nor does the mediator. During the pandemic, doing a mediation online provides flexibility on timing to work around your schedule, and has the benefit of allowing you to feel more comfortable making decisions in your own surroundings. Mediation also allows you to come up with flexible and creative solutions in a confidential setting and often costs less compared to litigation.
Collaborative law is a team-based approach that involves a pledge not to go to court, an honest exchange of information by both spouses or parents, and a shared goal of coming up with a solution that takes into account the highest priorities of both spouses/parents and their children. The team-based approach means that, while you will each have your own lawyer to guide you through the process and look out for you, open communication and information sharing is emphasized –there are no “gotcha” moments. The goal of collaborative law is to come up with the best possible outcome for both parties. Often, other professionals trained in the collaborative process help you achieve your goals, including mental health professionals, parent coordinators, financial advisors, lenders, or anyone else necessary to reach a mutually agreeable outcome. Collaborative law can be more cost-effective than litigation, as 100% of every dollar you spend is dedicated to achieving settlement without the need for court intervention, which often results in escalating and unpredictable costs. While not every case is resolved through the collaborative process, approximately 86% of couples who engage in the collaborative process reach a settlement without ever going to court, and those who don’t are forced to hire new counsel, which is a strong incentive on both sides to resolve matters.
You should consult with a family law attorney to explore whether alternative dispute resolution makes sense for you. If you have further questions, or need assistance, contact one of our highly experienced domestic relations attorneys at Bean, Kinney & Korman, P.C. at (703) 525-4000. We practice in Virginia, Maryland, and the District of Columbia.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors, and are not necessarily the views of any client.