Alternative Dispute Resolution Can Speed Up Divorces in a Back-logged Court System

By Deborah R. Eisenberg and Kate W. Haakonsen

Divorce ranks as one of life’s more scary and stressful events.  Most people want it over with as soon as possible.  Almost everyone ends up feeling that it took too long.

Currently, Hartford Superior Court’s Family Division is laboring with backlogs of hundreds of Pre-Judgment Motions, Contested Divorces, and Post-Divorce Motions for Modification or Contempt of Court Orders.  According to data collected by the State of Connecticut’s Judicial Branch, on Nov. 3, 2020, the Hartford Court had 1,010 divorce cases pending, up from 675 one year earlier. Of these cases, 162 are more than 12 months old; one year earlier, 43 cases had been lingering for more than one year. Nearly all hearings are taking place remotely via Microsoft Teams and any matters requiring more than an hour are being scheduled well into next spring.

In person hearings seem to be a dream for the future at this time. Due to Covid-19 and the necessary workplace protections that have been put into place, the Family Relations Division, the arm of the court that assists in resolving custody disputes, has suspended its practice of in-home visits to perform custody evaluations and has otherwise limited its scope of mediation and assessment services.

What this means for those who are unable to reach agreements is a long wait without much opportunity for recourse. The old threat of “I’ll see you in court,” doesn’t mean much while this pandemic continues to rage.

Fortunately, there are other paths to settlement for divorce and custody litigants. Divorce Mediation and Collaborative Divorce are two options that offer couples opportunities to work with professionals outside of court to reach agreements on their own schedule rather than the court’s.

Divorce Mediation involves a couple working with a neutral mediator (generally an attorney) who does not make decisions but facilitates an agreement between the parties. After addressing the couple’s parenting disagreements and their financial disputes surrounding their income, assets and debts, the mediator helps them consider the various options for resolution. Each spouse may choose to have outside legal consultation along the way. When agreement is reached, the necessary paperwork is prepared and filed with the Court.

Another mediation option exists for couples with substantial assets and complex issues who are tied up in litigation with no end in sight: They and their attorneys can retain a mediator, often a retired judge with a private mediation practice, who can allot several hours in a day to resolve all outstanding issues.

In the Collaborative Divorce Process, a couple works with a team of specially-trained divorce professionals including a lawyer for each spouse, a neutral mental health professional and a neutral financial professional.  The couple benefits from the skills of each team member in working out their parenting arrangements, collecting, organizing, understanding their financial information, and finally identifying and evaluating options for resolution. Each spouse has the support and guidance of a lawyer throughout the entire process.  The collaborative divorce approach is private and focuses on the children and the unique interests of the couple. The goal is not for one spouse to “win” or “lose” but to achieve a settlement that each can live with and that is reasonable for the family.

Both Divorce Mediation and Collaborative Divorce can be done remotely, eliminating the need to travel and allowing clients to choose professionals without concern over their office locations. Both processes can save couples time and money and get them to a resolution specifically tailored to their needs and interests much sooner than the traditional court process.

Once an agreement is reached through either process, the case can be finalized very quickly. The Judicial Branch has created new forms that allow the court to review agreements and enter orders or judgments within a matter of days without holding a hearing, either live or remote.

These two alternate dispute resolution processes offer couples excellent options for finalizing their divorces while working through our back-logged court system.