Alternatives to Trial Overview
Do I Have to Go to Court in Divorce?
No. Not every divorce has to end in an expensive lengthy trial in front of a judge or (if requested formally) a jury. In fact, most divorces in Georgia do not end up going to a final trial for resolution. Instead, they typically end up agreeing on a settlement in mediation or informally. If you are involved in a contested divorce where the issues have remained contested with no agreement throughout the whole process, then having to go to court for a final trial is much more likely. Otherwise, you are likely to end your divorce in mediation or settlement before your case reaches final trial. Cases not resolved in final trial, are typically resolved through methods called "Alternative Dispute Resolution" or "ADR". Some common ADR methods include: Case evaluations (or alternatively referred to as late case evaluation or early neutral evaluation); Arbitration; and, Mediation. Georgia courts offer alternative dispute resolution for two main reasons: 1) to help the judiciary handle more cases with fewer resources; and, 2) to offer litigants lower-cost, faster and effective ways to resolve their differences without resorting to trials.
Three Alternatives to Final Trial
In mediation, a neutral impartial third party mediator is used to facilitate settlement discussions. Typically, mediators will focus the parties' attention on their needs and interests in their divorce and not on their rights and positions. The mediator has no authority to make a decision or impose settlements upon the parties. The mediator is merely there to guide the parties to a fair and equitable settlement for their divorce that would be recognized in court.
In arbitration, an arbitrator or a penal of arbitrators will make a decision on the issues in your divorce after both sides present their case/arguments. The decision that the arbitrators make may either be a binding resolution for the divorce, or non-binding (like a recommendation or likely outcome if the case was taken to court). Arbitration is very different from mediation. In mediation, the mediator helps guide both parties to an agreement, but the mediator has no authority to make a decision. In arbitration, a decision is made (binding or non-binding) after both sides present their case.
"Settlement Conference" refers to two different things. First, a settlement conference could be a judicially hosted settlement conference. The Judicially hosted settlement conference occurs where both parties present their case before a senior judge. That judge may then make recommendations for settlement and offer their experience as to what might happen at trial should the parties choose not to settle. The second type of settlement conference is an informal settlement conference. This is the most common, and it occurs merely by the two attorneys for both sides negotiating with each other and the respective parties to come to a settlement.
Does Using Mediation Save me Money?
Yes. Resolving your divorce through mediation is likely to save you money and time especially when compared to final trial. Lawyers bill for their time, typically lawyers bill a particular rate for every hour worked. Going to a final trial requires a lot of prep by the lawyers. This will take a lot of time that you will be billed for. That time will be used for prepping arguments, finding witnesses, exchanging documents and other discovery evidence between the parties etc. In mediation, for the most part, this won't be necessary so you will save on lawyers fees. It is notable that courts are generally pretty busy. Getting on the court's calendar for a final trial can take a good bit of time. It can even be the case that an open slot may not be available for a few months. Whereas mediation can be had any time the parties agree to. As such, it will likely save you a lot of time as well.
Mediation vs. Arbitration
Both mediation and arbitration can be used to resolve your divorce. Both will likely save you time and money compared to going to final trial to have your case resolved in front of a judge. However, the these two forms of ADR are different.
Many courts require parties to attempt mediation.
Mediators are neutral 3rd parties that help facilitate settlement.
Mediators do no make decisions on behalf of either party.
Settlement from mediation is binding if both parties agree and submit to the court.
Arbitration is not required to be used or attempted.
Similar to court, both parties will present their case to an arbitrator or panel.
An arbitrator will make a decision on the case after hearing from both sides.
An arbitrator's decision can be legally binding or a non-binding recommendation.