How Do I Stay Out of Court?

“We do not want to go to court.” Often, this is one of the first things people say during the initial consultation. Fortunately, there is no shortage of options for resolving a divorce outside of court. In this episode, your host and guide, Attorney Leigh Sellers, provides you with the tips you need to keep your case out of court.

Key insights from the episode:

[1:51] – Options to resolve your divorce matter outside of court (mediation, collaborative divorce, and arbitration)
[2:28] – How mediation can keep you out of court while saving you time and money
[6:30] – Collaborative divorce: when you want resolution and not revenge
[11:27] – The benefits of arbitration and why it’s growing in popularity

Wondering what to ask in your first consultation with a lawyer? Check out the episode How Do I Prepare to Meet My Attorney.

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The insights and views presented in “Welcome to Splitsville” are for general information purposes only and should not be taken as legal advice for any individual case or situation. Nor does tuning in to this podcast constitute an attorney-client relationship of any kind. If you’re ready for compassionate and reliable legal guidance on your journey through divorce, contact Leigh Sellers and her team (NC/SC) at www.TouchstoneFamilyLaw.com

Read Full Transcript

Hello there. Going through a divorce? Considering one? Sorry to hear that, but here you are. Welcome to Splitsville. You’ll find Splitsville to be a pretty unique place. A new world really, with its own rules, its own expectations and in many ways, its own language. But don’t worry, you have a knowledgeable guide along the way, a family law attorney with three decades of experience under her belt.

And now, here she is. Your host and guide, Leigh Sellers.

Hi everyone, and thanks for tuning into another episode of Welcome to Splitsville. I’m your host and guide, Leigh Sellers, founder of Touchstone Family Law. And, in this episode, I’ll be answering another question that many newcomers to Splitsville have, “How do I stay out of court?” So let’s dive in.

What do you do if you don’t want to go to court? A lot of people right off the bat already know they do not want to get to court. And that’s one of the questions or comments that will come up early in a conversation with me is “We do not want to go to court.” “No we do not want to go to court.” So what are your alternatives? You don’t want to go to court. What do you do? Well fortunately we do have a lot of great alternatives that are very complimentary to a family law situation. So when you’ve got a dispute between people that were in an intimate relationship ,a close relationship a litigation really isn’t well suited to resolve these kind of conflicts and most every experienced domestic attorney understands that.

It is a necessary evil sometimes. But if you can avoid it I think everybody comes out better. And so fortunately you do have options. So the option you’re going to hear about the most is mediation. You may also have heard more of a buzz around this concept of collaborative divorce and occasionally people are going to throw the term arbitration at you as well. And if you’ve heard somebody start talking about alternative dispute resolution or ADR that’s what they mean. It’s the alternative to litigation. So an alternative dispute resolution and the three major players in that category are mediation, collaborative and arbitration.

So mediation is the one that as a family conflict specialist you’re going to hear the most about. So a mediator is not a decision maker, a mediator is a person who is trained to help two parties come to their own agreement. They are a facilitator of an agreement. You’ll hear mediators always say “My client is the agreement.” What they mean is they’re focused on helping the two of you reach an agreement. They’re not trying to make a decision for you or argue with either of you about who’s right or who’s wrong. And even express an opinion as to whether or not the agreement is a good agreement. They’re just trying to help the two of you reach an agreement.

So I’m a trained mediator and was trained in mediation in 1994 when it was a new thing in family circumstances. And I’m a huge believer in the process and I serve both as a mediator in people’s disputes and then I serve as an advocate for my clients in mediation. And I find it to be very great option for my clients and it works very well in a large majority of cases. I think the biggest thing that you as a litigant or a party need to understand is it’s still normally going to involve an attorney. So both in North Carolina and South Carolina mandatory mediation is woven into the court rules. So you aren’t going to have a family law case in North Carolina or South Carolina that isn’t going to steer you into some sort of court mandated mediation opportunity at some point or another. And that’s something you can get more details about if you actually speak to an attorney where your case is pending. But you’re going to be forced to try it if you file a lawsuit anyway in most all of the cases, there’s a few exceptions but just like everything in life there’s an exception to almost every rule. And there’s an exception to the rule that you’re going to have to go to mediation.

But knowing that you’re going to have to go to mediation anyway there’s a lot of people that just want to go ahead and jump to that process and go straight to mediation and it can work really really well. So if that’s something that you’re interested in, you want to be sure to ask about it in any consultation that you’re having. There are people who practice mediation. It’s not a regulated industry, it’s not a regulated area like law.

So there are people that can put out a shingle and say that they’re a mediator and they could be very well trained. I’m not suggesting that everyone out there that says they’re a mediator isn’t any good if they’re not an attorney, that’s not at all the point. I’m just saying you don’t know. But what they aren’t is lawyers, they can’t give you legal advice. And they can help you reach an agreement but ultimately you’re still going to have to take that agreement to an attorney to turn it into a legally enforceable document. So there’s still going to be an attorney involved in the process. If you’re already working with an attorney the attorney is going to be involved in the mediation process as well. So that the whole time that you’re trying to negotiate an agreement you’re also getting your legal questions answered about the impact of the agreement that you’re suggesting or the term that you’re thinking of agreeing to or the idea that you have that will resolve it. You’ve got somebody who’s telling you what the legal implications if any are of that particular decision that you’re thinking about making.

So it’s going to happen at some point of the process anyway whether you and your spouse go without attorneys and talk to a mediator and come up with some bullet points. Those are the bones of what would be eventually the legal document that would bind you to actually live by those terms that you two have created. But it is a great process and I highly recommend it and you should ask how it could fit your set of circumstances and how it could work for you and your spouse.

Another one that is a little bit lesser known but is gaining in popularity is collaborative a divorce. A collaborative divorce is very different. In collaborative divorce the touchstone of it is that you are agreeing not to go to court. So a collaborative divorce involves a contract where both litigants say that they’re going to resolve the matter outside of court and that they are going to work in a free and open exchange with their respective attorneys and any other specialist that might be brought in to resolve their differences without asking a judge to make the decision. And it’s a binding contract and generally requires that if you break it and you do decide to go to litigation that you have to get different attorneys and start all over. You don’t get to use any of the materials or build on anything that you’ve worked with.

And the point is that in a collaborative divorce you’re working as a team, you’re dividing responsibilities. The attorneys while advocating for their respective clients are compelled to disclose information that’s relevant to the other side even if it’s not requested. If a mistake is being made that disadvantages one party or the other accidentally as simply because somebody made an error in the paperwork, even if it advantages your client you’re supposed to point it out to the other side. And the reason that you’re doing it that way is because you as spouses have said this is how we want to do it.

And the thing about collaborative divorce that I love is that it’s a great place to be when you want to be OK and you’re OK if your spouse is OK. So you want to get what you need and what you want but you’re absolutely just as interested to make sure that your spouse has what they need. So it’s this great situation. I always say when you want resolution and not revenge collaborative divorce is a great great option to consider. Because it addresses the fact especially for divorcing spouses that have children, it addresses the fact that this human being on the other side of the process is going to remain in your life as long as you’re alive, as long as your children are alive. It recognizes that the relationship that’s changing is changing but not ending in a sense that even if it’s just a tacit peace, it’s just an accord of not fighting anymore.

Maybe it’s never going to be warmth or love or any kind of great relationship but that you’re going to hope at the end of the day that you both can move on, that you both feel that you’ve treated each other fairly and you’ve been treated fairly. That you both have the building blocks to have your life continue in a meaningful way and that if you have to show up at the hospital to see your first grandchild being born and you both run into each other and take the same elevator up to the floor that it’s a pleasant experience. That it’s not “I’ll take the stairs” kind of approach. And it can just be the best way in the world to handle family situations if both parties make that agreement up front. And that’s what it is. It’s a mindset that’s developed from the front that carries through.

It does not mean that there are not some pretty spirited discussions. I have fought quite a lot of length and quite loudly with opposing counsel in many collaborative cases if I really felt like something needed to be pushed. But it’s the spirit with which it’s done. It doesn’t mean that there isn’t great advocacy. It’s not a pass the peace pipe, everybody sit on the floor with their legs crossed and hum. It’s not some sort of a meditation experience, it’s not for hippies and you know hemp smoking. It’s a real legal process but it’s just the basis from which it starts. And I’m a huge fan. And there are collaboratively trained attorneys and that’s what’s important because it is a special way of approaching it. It is very counterintuitive to how lawyers are trained normally. And you have to take these lawyers that have been trained to be gladiators and make sure that they understand that collaborative’s different and they really do need to understand the differences of the approach. And so it’s very different from just negotiating and every attorney out there will tell you they can settle a case and they’re right, they’re not lying to you.

Every attorney out there has some skills in how to negotiate and resolve a case and not take it all the way through to trial. But that does not mean that they’ve been trying to be a collaborative attorney. So do look for someone who has actually had the training and look into it. It is applicable to most family law disputes. There are a few exceptions. I personally am one that do not think it works well in a domestic violence situation. There are some people that disagree with me. I just think the imbalance of power is too great if there’s been domestic violence and for that reason I wouldn’t recommend it in this situations. But I think it can be a wonderful option.

The one that is used the least is arbitration but it’s gaining popularity. And one way to look at arbitration is like rent a judge. In arbitration you are having a decision maker, you are basically litigating your case in front of a private attorney or a former judge but somebody who has been trained to actually resolve the dispute much like a judge. The difference when you choose arbitration is you can choose a person who is much more knowledgeable who has the specific knowledge base or skill set that perhaps none of the sitting judges might have. In any judiciary those judges have their own personal skill sets. They’ve been on the bench a certain amount of time. Maybe they came to the bench from a particular area.

So you may have a judge that’s more nuanced or skilled with numbers than another one or one that’s maybe has a lot more history with addiction or with custody issues. So when you do arbitration you can actually tailor pick a person who has a lot of knowledge in their brain to process the evidence that you’re giving them and not perhaps need as many experts because they don’t need somebody to explain the information that you’re presenting to them in any meaningful way because they can just digest it. It’s just like having somebody that speaks a different language, it’s helpful if they’re a native speaker as opposed to someone who’s maybe just taken a [inaudible [00:11:54] course at community college on the language, you know who are you going to pick to interpret for you. And it’s a really nice process from that standpoint.

So it’s very good for situations where maybe a little extra expertise could be helpful in resolving it. And while those people that you’re hiring as an arbitrator aren’t using their own independent judgment, they’re supposed to make their decision based on the evidence that’s presented to them and they will. It’s a formal process. There are statutes that dictate exactly how it’s to be done, the same way there are court rules that dictate how your experience is going to be at the courthouse. And it can be very good for very specific specialized situations.

Another advantage to it is the timeline. So where court processes and court cases move with court availability and court calendars and whether or not you have a court reporter and whether or not you have enough bailiffs to open a courtroom and how many days of court the legislature has approved for that particular jurisdiction to have. There’s a lot of things that tie your hands about how quickly you can move your case along. Arbitration is different because it’s going to be self scheduled. So it’s going to be much easier to move the case along at a pace that you can control than litigation and so that’s also an advantage. It is in some ways more expensive because you don’t pay a judge. In fact it’s the opposite, nobody’s supposed to be paying the judge to keep them neutral. In arbitration you’re both going to split the cost of the arbitrators time. So that is a bit of an added expense. You have to choose whether you’re going to have a court reporter and then you would pay them whereas obviously a court reporter who’s sitting in a courtroom has already been paid by the appropriate government entity that put them there.

But I do think that the time you waste in court offsets the extra expense of arbitration and also the fact that just the rules of arbitration allow for stipulations in a different manner and the production of documents in a different manner and there’s just a lot more flexibility I think with arbitration. So it’s growing in popularity. As the court systems become more overwhelmed, as the court systems become horrifically underfunded, as we find the experiences in the court system to be less and less friendly to our clients you will find more and more attorneys talking to year about using arbitration either on a temporary matter or a permanent matter as an opportunity to resolve your case better.

So all three are ways that you’re staying outside of the court system and you’re saying outside of having a judge decide your case and they’re all great alternatives. You’d still need to speak to someone to know which alternative might work but if you have an attorney that hasn’t already discussed these options with you be sure to ask about them and if you’re planning a consultation with a domestic attorney and you feel that anything that’s been described might work for you be sure you specifically bring it up if they don’t mention it. But they’re all great alternatives to keep you out of court and any time that you can keep your family out of court I say go for it. That’s like the least friendly place to go. If you want to talk about a place where you have zero control in your life. it’s a courthouse. And when you’re going through a divorce and separation you already feel a tremendous loss of control of your life. And the last place you want to take your situation is to a courthouse in my opinion and I don’t think I’m alone in that opinion. So you can read more about them, there’s a lot of Web sites dedicated to these areas but they’re all wonderful opportunities that I think everybody should explore.

So there you have it, another neighborhood of Splitsville explored. There’s still so much to learn here, so I hope you’ll tune into the next episode. While Splitsville is not a fun place to be, thankfully it is full of helpful people, valuable resources and sound advice, if you know where to look. See you next time.

The insights and presented in Welcome to Splitsville are for general information purposes only and should not be taken as legal advice for any individual case or situation. Nor does tuning into this podcast constitute an attorney/client relationship of any kind. If you’re ready for compassionate and reliable legal guidance on your journey, contact Leigh Sellers and her team at touchstonefamilylaw.com.

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