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Jeffrey D. Ginzberg

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Divorce is adversarial by nature to some degree. In every case there is a plaintiff and a defendant whose interests are not always aligned. In nearly every case there is an inequality that needs resolution. If there is a dispute concerning finances or custody the court is normally the forum of last resort to resolve the controversy.  A skilled divorce lawyer should have extensive trial experience and advise you whether to settle or try your case. An unskilled trial lawyer can not decide which strategy to employ. If you do not have both options open then you are at a real disadvantage. Divorces can be resolved either by settlement or trial. Settlement can be achieved through attorney to attorney negotiation, mediation or arbitration.  


Mediation is an option for clients who have decided to try settlement without foreclosing the formal option to litigate. A popular model is for each client to have his or her own lawyer while engaging a mediator or mediators to help resolve the dispute. The obvious benefit is to avoid a trial where there is room for compromise.  Retaining your lawyer in mediation is important because your legal rights and strategies should not be ignored. Mediation should be conducted by an experienced trial lawyer because mediators are not allowed to give legal advice. Mediation can, but will not always, lower legal fees. Mediation often does not work in the case of an “economically disadvantaged spouse.”


Arbitration is an option for those who seek to avoid the court room while retaining a limited forum to resolve financial controversies. In arbitration the parties agree to pick an arbitrator who will resolve the dispute and the parties retain the right to choose the rules for conducting the arbitration. It can be as formal or informal as the parties’ desire and the parties still retain trial lawyers to represent them. However, arbitration has only limited applicability because child custody issues can not be resolved in arbitration. If one chooses arbitration it is important to understand the meaning of the waiver of judicial review and the right of appeal. These monumental considerations should be reviewed by an experienced trial attorney. 


Collaborative Divorce is not susceptible to easy categorization. It is neither mediation nor arbitration and it can be used only in special cases. The key aspect of any collaborative process is the covenant to avoid the court room at all costs and work collaboratively to resolve the custody and financial disputes. If you are an “economically disadvantaged spouse” you should probably avoid collaborative divorce because the court room is foreclosed as a strategy to level the playing field. All collaborative attorneys require you to sign an agreement at the outset to avoid the court room. If you are not sure collaborative divorce is right you should ask for advice.  


If you go it alone, without an attorney, this is called “pro-se.”  


With all of these options the one is right for you will depend on whether you have a skilled trial lawyer who can advise you about what you might be giving up.