By now most of us have been in quarantine for 9 months or so. Some were able to return to work on a limited basis, while others unfortunately lost their jobs due to the pandemic. Many married couples who had made the decision to separate or divorce prior to the lockdown are still faced with living together nearly a year later in what can only be described as less than ideal circumstances, while other couples whose marriages might have had small issues are now filing for divorce.

The issue for most divorcing couples is that courts, by and large, have been working remotely since March of 2020. Proceedings have been taking place on Zoom, Teams and telephonically at a much slower pace. Trials and hearings are occurring, but not with the frequency that we would all hope and this creates a backlog of cases in the system. This means that those cases that were scheduled to be heard in April are now being heard in February and so the February cases will be heard in….(well, you get the picture).

So, then what are two people who cannot stand each other, but have to live together because one cannot afford to move out (or refuses to leave), to do? Mediation or arbitration may be the solution at a time like this.

Mediation in family law matters is compulsory in many states. Oftentimes there is a list of trained attorneys or former judges who handle these matters. Some portion (an hour or two) may be complimentary and thereafter there is a set hourly rate. At mediation, the parties (and their attorneys if they have one) meet with the mediator to discuss the issues (child support, equitable distribution, alimony, etc). There is frequently a running between rooms by the mediator and the colloquy “she is at x, would you go to y” in order to get the parties to settle. If the parties resolve their differences usually they leave with a term sheet or some sort of memorandum of understanding and the attorneys will draw up the settlement agreement based on the terms to be circulated for signature and submitted to the Court for finalization. The parties are then divorced.

If the parties are unsuccessful at mediation, they then can return to court for a trial before a judge or they can submit their matter to arbitration. Arbitration can best be described as a private trial. The matter is conducted as formally or informally as the parties agree; they set the rules on the issues to be decided and appealed. The arbitrator hears testimony and renders a decision, just as a judge would in a courtroom. It is essentially a trial, but takes place in a conference room and the arbitrator wears a suit or dress, rather than a robe.

The benefits of both are numerous, especially now. Most high-income individuals do not want their business out in the open; courtrooms are public, so the media can attend. Even for those that are not wealthy, if there is a family business or any other unique circumstance, mediation or arbitration may be better. Finally, mediation especially, gives the parties a sense of power and control over their own lives, which is important when going through something as emotionally charged as a divorce.