Arbitration. Mediation. Negotiated settlement. They sound like good ways to avoid divorce court. Unfortunately, in North Carolina, these non-court options fail families in many of the same ways that court fails families. Why? Because these alternatives continue to be adversarial and use the same standards as divorce court when trying to evaluate offers and proposals.
The Right Way to Stay Out of Court
There’s only one truly effective way to stay out of divorce court in North Carolina when you are faced with separating from your spouse. Collaborative law proceedings were designed specifically with that in mind. The attorneys in collaborative law proceedings must actually pledge in writing that they will not file papers in court and that they will help a couple get a marital settlement agreement without going to court. The attorneys are disqualified from ever going to court for any matter relating to the couple’s separation.
As a result, the attorneys are freed to be able to help a couple problem-solve, instead of fight. Instead of a hired gun, your attorney is able to be a thoughtful counselor, making sure that your highest interests are protected and your most important goals are achieved throughout the difficult transition of divorce.
Divorce Arbitration, Mediation and Negotiated Settlement in North Carolina
One option that divorce attorneys use for avoiding divorce court is called arbitration. But arbitration is really only a slightly less formal version of court. The couple pays an arbitrator to sit like a judge. A retired family court judge or experienced divorce attorney is paid to provide a private court hearing. The attorneys present their cases to the arbitrator, and then the arbitrator decides who gets what. There is no appeal if you don’t like what the arbitrator does.
Arbitration has the advantage of keeping the proceedings out of the public eye, but the nature of the proceedings is still highly adversarial. The attorneys try to discredit the other spouse and cast everything in a light most favorable to their own spouse. It inevitably creates hard feelings and emotional scars that are hard to overcome after the arbitration proceeding is over. Arbitrators are famous for “splitting the baby” so that everyone leaves the arbitration unhappy.
Over the last 15 years, the courts have been very active in promoting the use of mediation as a way for couples to avoid divorce court. Interestingly, family court judges are often the most sensitive to the damaging effect that court has on families going through the divorce process. They see it every day. Requiring that couples and their attorneys attempt mediation before having a court hearing has been the judges’ favored way to try to keep families out of court.
Mediation is different than arbitration because the mediator—unlike the arbitrator—doesn’t have the power to decide who gets what. Instead the mediator tries to help the parties reach their own agreements. But because court-annexed mediation happens in the shadow of the courthouse, most divorce attorneys approach this type of mediation as if they were preparing for trial. Again the attorneys try to discredit the other spouse in the eyes of the mediator and cast everything in the light most favorable to their own client. They hope the mediator will use his or her influence to convince the other spouse to settle on terms that are favorable to their client.
A mediated settlement can be less adversarial than a court hearing, but spouses still tend to feel attacked by their spouse’s attorney and hard feelings are typical. Traditional “hard-bargaining” tactics are used, like offering less than you are willing to give and/or asking for more than you will accept. These tactics not only delay resolution for hours, but also discourage spouses who are hurt by unrealistic demands or offers.
Mediators in these court-annexed mediations often say that a successful mediation is one where both spouses feel like that had to give up too much. This is similar to what judges have been known to say: “I know I made the right decision because both sides were unhappy.” In both cases, everyone is unhappy.
It’s become standard practice for divorce attorneys to attempt to “settle” before filing a divorce action in court and promising their clients they can help them avoid divorce court. Traditional attorney negotiations nearly always involve “positional” bargaining and follow a common pattern. One spouse meets with an attorney, and the attorney gathers the facts about her situation. She and her attorney work out a proposal for a settlement agreement that is skewed in her favor, in order to leave some negotiating room for later. The attorney sends this proposal to the other spouse who responds with surprise, hurt, anger, and defensiveness after reading the proposed settlement into which he had zero input and is, even in his wife’s eyes, unfair to him. He consults with a lawyer, who then sends a response back to her lawyer with a skewed counter-proposal, which commences the back-and-forth negotiations between the lawyers. Spouses get conflicting advice from their respective lawyers which often leads to disagreements between the parties that didn’t even exist prior to the involvement of attorneys.
The attorneys will continue counter-offering, attempting to get concessions from the other, and sending the proposed agreement back and forth. Often the lawyers encourage mediation as a way to try to get a settlement. If mediation doesn’t work, papers are filed in court.
Divorce-lawyer negotiations are nearly always an attempt to recreate what the lawyers think would happen if the parties went to court. Since two highly experienced lawyers can have different opinions about what would happen in court, it’s usual for these types of negotiations to be contentious and take a lot of attorney time. Since the attorneys are talking, but the spouses are not, miscommunication and misunderstanding between the spouses is common, again creating hard feelings. Creativity and efforts to customize a solution for the particular family are hampered by the positional, competitive bargaining style of negotiation and what the attorneys believe would happen in court.
If you are approaching divorce please consider collaborative divorce and meet with one of our experienced collaborative divorce attorneys to find out how to avoid the failings and frustrations of North Carolina divorce court.