Alternatives to Trial
Mediation & Arbitration
More Divorce Topics
Mediation is a day where all of the parties come together in the same place with the goal of settlement. Courts most often require parties to mediate before allowing the case to be placed on a final trial calendar. On Mediation day we will work with a trained mediator (or neutral) who will try to find compromise and determine if the parties can settle the case without litigation. You are never required to settle your case. On this day, both sides will present their side of the case to the mediator who will give opinions about the facts, explain how your case might be received by the courts, offer suggestions on compromise, and look for common ground. Many clients are surprised they actually settle the case on this day. We have many clients that are convinced there is no way their spouse will settle or be reasonable, but on this day, we have seen the walls break down, allowing for settlement to occur. If the case does not settle at mediation, it is usually headed for a trial.
Late Case Evaluation:
The parties agree that a senior judge (retired judge) who still serves in limited capacity will be hired to review each client’s position and offer an opinion of the results, should the case go to trial. Sometimes this opinion can influence a party’s desire to settle the case.
If the case has not settled at mediation or after a late case evaluation, it is headed for trial. A great deal of effort is placed on resolving your case short of trial for several reasons. Primarily, your case is usually resolved in a better fashion if you have some say. If a judge decides your case, he or she will never know the facts like you do, and you can be stuck with a decision that doesn’t make sense for either party or your children. Aside from the uncertainty of litigation, the costs associated with litigation can get extremely high, which should always be a factor in determining your reasonableness in settlement discussions. For example, no one would want to litigate over a piece of property worth $1,000.00, when the cost of litigation would be $2,500.00. The same principle applies to your spouse. Even though avoiding a trial may be a desired outcome, if your spouse or their attorney cannot be reasoned with, it may be the best option. In the event a judge finds that your spouse’s position, or their attorney’s position, is without merit, was offered for delay, or overly litigious, they can award attorney fees from either of them.
The timeline for divorce cases that settle is usually 60-180 days. In divorce cases that do not settle, it is not uncommon that they take a full year to resolve.
Arbitration is where the parties agree to an alternative to court. A mutually agreeable arbitrator, who acts like the judge, hears evidence in your case and renders a decision in the case. Arbitration can be binding, or non-binding, as agreed by the parties. A binding arbitration means that both parties are legally bound by the decision. It differs from mediation in that the arbitrator makes the decision and in mediation the parties attempt to make their own decision. Arbitration is becoming an excellent alternative to court because it offers greater flexibility. The parties generally split the cost of the arbitrator. An arbitration is like a private court with relaxed rules. You designate the time of the hearing, while not sitting in a courtroom full of people waiting on your case to be called. Many clients feel that extra cost of the arbitrator is more than off-set by the time spent complying with court calendars and schedules.
In Georgia, arbitrators are required to either be attorneys or experts in the field which is the subject matter of the arbitration. We can help you determine if Arbitration is best suited for your case.