Divorce Approaches in San Diego: Arbitration, Mediation, Litigation

The simple truth of going through a divorce is that it will likely be a highly stressful and unrelenting process. Throughout my career as a San Diego family attorney, I've learned that there is no way to sugar coat it. There are bound to be fundamental disagreements over the specific resolutions of your divorce. Certain areas of separating from your partner will be easier than others. Divorce attorneys in San Diego utilize several different dispute resolution methods  to resolve your divorce or family law related matters.  Understanding how each of them work is crucial to finding the right method for your particular situation. Choosing a family attorney in San Diego that will educate you on the various dispute resolution methods is a family attorney that you can trust. Do your research before choosing one.

Litigation, mediation, and arbitration are the three main ways to resolve disagreements within a divorce.  As no two San Diego divorces are going to be exactly the same from a financial and emotional perspective, not every approach fits every divorce.  Each approach or method has distinct differences in how to resolve a disputed divorce. One approach or method may have more appeal to you and your unique needs.  Before any legal action is taken, careful consideration must be given by each person to ensure that the most efficient method is chosen from an emotional and financial perspective. Utilizing the correct method for your situation could save you excessive heartache and thousands of dollars. It could also possibly result in an outcome that is beneficial not only to divorcing spouses, but also for their children.

Three Main Ways to Resolve a Divorce

Litigation

Litigation, in the technical sense, is a contest in a court of justice for the purposes of enforcing a right.  It is often glorified and simplified on television, and in Hollywood on the big-screen.  In reality, it is a process that is often both in-depth and rather complicated. Divorce litigation can be tricky, as many of the initial positions taken by spouses are based on emotion rather than distilled fact-based evidence.  Couples going through a divorce in San Diego should first consider receiving competent professional guidance (i.e. attorneys, counselors, financial planners) before committing to litigate an issue or issues in a divorce.   If it then appears there is no other way to resolve key issues such as child support, child custody, property disputes, and spousal support, going to court may be the only option.

Litigation should be a last resort in most instances.  Some divorce cases start out in litigation right out of the gate, but most divorce cases typically arrive at this point after all other reasonable measures have been exhausted.  For example, if one of the spouses in a divorce feels like they should have ‘sole’ possession of an item involved in the case, or even full custody of a child, then litigation is often the result.  California divorce litigation takes place in family court, and often ends up costing thousands of dollars in legal fees.

Litigation is also highly unpredictable.  Experienced attorneys, such as a California Certified Family Law Specialist, are highly likely to better understand the legal intricacies of divorce, and will be able to give solid opinions on the likely outcome in court.  However, no one can guarantee the outcome, especially when that outcome is ultimately left in the hands of a judge.  Cases involving children can be especially difficult to predict, as there are numerous factors that will ultimately be considered and weighed by the court.  If an issue is fully litigated, the judge will ultimately hand down a decision to the divorcing couple that binds both spouses, like it or not.   

Resolving a divorce is through litigation is often the path taken by couples who ultimately fail to compromise.  It can be a messy process, and can result in strict limits on custody, support, and property ownership.

Arbitration and Mediation

i. Arbitration

Arbitration and mediation are similar in one major area.  They are both alternatives to litigation.  Both concepts revolve mainly around having a neutral third party that ISN’T a judge or jury to settle divorce conflicts. These processes are usually much less expensive than litigation, and much more streamlined in how divorce it is handled.  Both have unique aspects to them.  Often times, even with arbitration or mediation, litigation results as the next step.

Arbitration is typically used as a binding process, and can be used to resolve the same issues in a divorce that would be dealt with in litigation.  Arbitration is used as a trial process, and is much more likely to work its way up to litigation.  An arbitrator must be agreed upon by each spouse.  A lawyer is often hired by each spouse to represent the spouses’ interests in the arbitration process. 

This process is ideal for couples who may not necessarily be able to come to an agreement, but desire to move the case forward in a more efficient manner.  With continuing budget cuts in California courts, resolving divorce through traditional litigation can easily take more than a year due to crowded court calendars and staff cutbacks.  In contrast to litigation, divorce arbitration is conducted outside of the courthouse in private, and will often cost much less than litigation in terms of fees and time.  The results of arbitration are binding and normally cannot be appealed.  Despite its advantages, this is one of the main reasons that arbitration is a scary subject for many people who are going through a divorce. 

While divorce arbitration can be just as stressful as litigation in the issues to be dealt with, it will be kept out of a public courtroom, and is often less expensive and faster to resolution.  After an arbitrator passes decision on the divorce conflicts, the negative feelings associated with the divorce typically subside with time.This can be a much more cost effective for San Diegan's facing divorce or seeking help with family law matters.

ii. Mediation 

The mediation process is the less expensive and non-binding alternative to settle a dispute.  This process is common for couples who are struggling to find a realistic solution to problems.  This process is a successful divorce resolution technique for couples who are willing to put aside their anger in a concerted effort to find common ground.

In this process, a single mediator is chosen and agreed upon by both parties.  The mediator doesn’t act as a judge or jury and cannot make binding decisions, but rather is someone who can lead the dispute to a solution that works for both sides.  Often times, upon going through the mediation process, reasonable solutions can be found to previously thought irresolvable conflicts.

Mediation is a less expensive process that is often successful.  Similar to arbitration, mediation is voluntary in California divorce proceedings, though many judges openly encourage parties to try mediation to resolve their disputes before proceeding to trial. Divorce mediators are often experienced family law attorneys trained in negotiation who remain neutral.  They do not advocate for a particular spouse, but for solutions that both spouses can agree upon. Creating an open, yet confidential, dialogue is an essential part of the process.  Often times, divorcing couples find a solution after through mediation by ‘getting things off their chest’.  The popularity of divorce mediation has increased dramatically, and it has a high success rate. An experienced divorce mediator can provide for a much smoother divorce. 

The mediation process is fairly simple to start.  Both spouses should contact potential San Diego mediators (often experienced family law attorneys) to make sure they are comfortable with the mediator they ultimately choose, and the process the mediator likes to employ.  The mediator will then have the parties sign a letter of engagement or retainer agreement, and move forward. The process is confidential and privileged.  Unless the spouses reach an agreement in mediation that they each sign off on, all communications remain privileged and cannot be used against them later on.

No matter what route you choose to resolve your San Diego divorce, it is vital that you have a clear understanding of each at the outset. It is important to remember that certain guidelines must be followed in each process.  To best determine which process best suits your divorce, an honest look must be given as to the health of the relationship in question.  If both sides are willing to work together to find peaceful solutions, then chances are that the divorce itself can be handled in a much less expensive, private way.  For more detailed information, contact San Diego Certified Family Law Specialist James R. Vercollone, Esq. for experienced guidance as to the best method to protect your rights and resolve your divorce.