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Litigation. Collaborative Law. Mediation.

Process Choice in the Wake of the Coronavirus


If you are interested in pursuing a divorce, you have choices with respect to the process that you use to reach a global resolution. If you are an unmarried co-parent, and have a dispute with your child’s parent, again, you have choices with respect to the process that you use to resolve such dispute. If you are dealing with post-judgment issues, despite the process that you initially used to reach resolution, you have choices with respect to working out the post-judgment issues at hand.

There are four different dispute resolution processes of which you should be aware: (1) litigation; (2) negotiations through counsel without judicial intervention; (3) mediation; and (4) Collaborative Law.  The decision as to your choice of process should not be made lightly since it will set the tone for how your matter proceeds and will have a lasting impact on how your family functions and communicates well after the legal conclusion of your case. Currently, access to the litigation process is limited due to the COVID-19 pandemic. While virtual proceedings are available for some pending non-essential cases, new non-essential actions cannot be filed.

Under normal circumstances, one party can make the decision to litigate by filing an action in court. Once an action for divorce is filed, both parties must adhere to the assigned judge’s directives and timelines. In this instance, you outsource the most important decisions pertaining to your family’s life to a judge, who initially knows very little about you and your children, and who is tasked with resolving disputes between numerous families every day – all in an open courtroom while other litigants and their attorneys await their turn to be heard.  Sometimes, litigation is necessary. Often times, however, it is not. Most disputes can be settled. And more often than not, in my experience, disputes can be settled amicably, respectfully and in a way that will work best for your unique family in the long run. You and your partner know your family best; because of that, you are the ones who are best equipped to make important decisions pertaining to your family. For these reasons, we find it prudent to have a conversation with your partner about process choice tailored to your specific needs, at the outset of a dispute, so that you can set the stage for the most effective and efficient process.

Now that the courts are only open on a limited basis, and new actions cannot be filed, it is a good time to explore and consider your non-litigation options, including negotiations through counsel without judicial interventionmediation and Collaborative Law.  We can immediately provide all of these services on a virtual basis. Even though you will not be able to file uncontested divorce paperwork right now, you can negotiate the terms of a Separation Agreement, and come up with a plan for how you will address parenting time, decision-making, and division of your assets and liabilities (albeit with placeholders and caveats for the time being, if necessary, if that makes the most sense given your current financial situation).  If you are unmarried co-parents, you can negotiate a Parenting Agreement or child support arrangements for the first time or modify existing plans. The same goes for post-judgment matters; for example, if you and your former spouse need to re-negotiate spousal or child support arrangements, this can be done now without the court’s involvement.

The question becomes whether it makes more sense to negotiate through separate, independent, settlement-minded counsel who can help you reach a resolution, or whether you want to be more involved in the process. If you want to be more involved in the process, mediation or Collaborative Law might be a better fit. With mediation, you and your spouse/child’s parent make decisions together with the help of a third-party neutral who facilitates discussions to help you resolve the issues in dispute. The impartial mediator, who holds no decision-making power, helps you clarify and articulate your own perspective and better understand the perspective of your spouse/child’s parent, even if you do not agree with it. The mediator will also help you identify the financial information necessary to make prudent decisions. With respect to Collaborative Law, it loosely takes the form of more traditional negotiations through independent counsel, but with both parties and their counsel, who should be trained in both Collaborative Law and mediation, having committed themselves to resolving their differences fairly and amicably without resorting, or even threatening to resort, to the courts.  In the Collaborative Law process, all participants sign off on an agreement at the outset, whereby if negotiations break down, and one party chooses to litigate, both parties will need to start over with new lawyers. This creates an incentive for the parties to come to the table and settle their matter. All three of these options are available now, virtually.

These same options will also be available when the courts fully re-open. When considering them, keep in mind that when the courts resume regular operations, there may be some delay for litigants. Once it is permissible to file new cases, the courts will likely be flooded with such matters. Once it is permissible to submit motions in pending non-essential cases, there could be an uptick in such filings regarding all sorts of issues ranging from disputes that arose during the COVID-19 crisis as to parenting time to requests for downward modification of support as a result of the economic implications of the Coronavirus.  While litigation is sometimes necessary, if both parties agree to bypass that process, you can resolve all of these issues out of court, using negotiations through counsel, mediation, and Collaborative Law.

We urge you to make an informed decision as to process. We are here to discuss your options.

Berkman Bottger Newman & Schein LLP can help you explore your divorce options. To schedule a consultation with an NYC divorce attorney, please calls us at (212) 466-6015, or reach out to us through our contact form today. We maintain offices on 5th Avenue in Manhattan, in White Plains, and in Hackensack, NJ.