The advantages of participating in alternative dispute resolution are expansive, and there are many different types of family law alternative dispute resolution (ADR). In fact, attending some form of alternative dispute resolution may be required in Minnesota family courts for custody matters, unless there are allegations of abuse. We will first explore the different types of ADR (in no specific order), then we will explain the advantages of each to help you decide which is the best option for you.
Mediation is a forum in which a neutral third party facilitates communications between or among parties to encourage the parties to reach a settlement. Mediators do not make decisions for the parties, but rather facilitate productive settlement communications. There are also options for child-inclusive mediation sessions. Mediators are trained in this specific area and contain a wide variety of experience. Some advantages of participating in mediation are that each party has an opportunity to be heard on the issues and that mediator does not have a stake in the final resolution. He or she will only express an opinion on the issues if it is an evaluative mediation. The parties must agree to attend mediation and they must also agree upon the specific mediator, unless they are court-ordered to attend mediation.
Early Neutral Evaluations
Next, there are evaluative processes called early neutral evaluations (ENE). An ENE is a forum in which the parties present the issues in dispute to a neutral evaluator, much like mediation. This typically occurs after the case is filed, but before discovery is conducted. The neutral will give their own assessment of the strengths and weaknesses of the case to help facilitate settlement. If settlement does not result, the neutral can help narrow the issues and suggest strategies for discovery and other issues moving forward. There are two types of early neutral evaluations: a social ENE and a financial ENE. Social ENE’s address social issues, such as custody and parenting time, and sometimes child support issues. A financial ENE addresses property division, spousal maintenance, and sometimes child support. ENE’s are unique because they contain an evaluative component, so the neutral evaluator actually forms opinions and suggestions on the issues. These evaluators are specially trained and also contain a wide variety of experience.
Lastly, through an adjudicative process, parties and attorneys can attend arbitration, which is a forum where they present their positions on the issues in dispute before a neutral third party, who makes a decision and renders a specific award. The parties can stipulate in advance to certain agreements, which will be enforced by the arbitrator into a binding contract. If the parties do not stipulate to the agreements but the arbitrator makes a finding and award, the award is non-binding and any party may request a trial.
Here are 5 advantages to pursuing alternative dispute resolution:
- Objectivity: You present the case to trained, neutral third parties who can look at the case objectively. Each side has their own strong opinions about how the case should proceed or be resolved. Attorneys similarly reinforce their client’s stance on issues they are passionate about. The objectiveness and neutrality of the ADR process allows a third party with no vested interest in the case to give their honest thoughts and opinions, or help facilitate a healthy and productive discussion. This can be a major factor in settling, as you may be more receptive to a neutral party’s opinion than that of your spouse or their attorney.
- Confidentiality: Statements made in effort to reach a settlement are considered confidential and cannot be used in court. This means that if the parties reach a settlement through ADR, but it is not reduced to writing and signed by the parties, the agreement is not binding on the parties. In other words, a party cannot claim that the opposing party agreed to specific terms if the agreement was made – verbally – during ADR.
- Autonomy: The ADR process allows the parties to reach settlements themselves, instead of having a judge, who knows very little about your situation and your family, to make a decision based on a handful of hours examining the evidence allowed into the record. Many people favor having the autonomy to make their own decision instead of having a decision made for them by a judge, and the judges prefer that families make decisions themselves as well. At the end of the day, if you prefer to make your own decisions about the future of your family, ADR is the right option for you.
- Familiarity If You Return: You can attend ADR more than once, either with the same or a different neutral. This is an advantage because settlements can often take longer than you think. If not all issues are resolved the first time, you can come back with a neutral who is familiar with your family and the facts of the case. This may be a more appealing option financially, because it saves time going over the background of the case and the costs associated with going to court.
- Ability to Choose Neutral: You generally have the ability to select choose your neutral for ADR. This is a major advantage because you can choose a neutral who has specific expertise in the particular issues of your case. For example, if there are mental health issues in your case, you can choose a neutral who has extensive mental health background. If having an opinion from a neutral who shares your values is important to you, you can seek a neutral who shares those values and understands sensitive cultural issues around race, religion, or other issues. If you decide to go straight to court, the judge is automatically assigned to your case and you do not have the advantage of getting an opinion from someone with specific expertise in your issues.
If you are working with an attorney, they will likely have some great suggestions for ADR options that work best for you and your family. If you do not have an attorney, it is important to understand the differences between the different types of ADR and the advantages so that you can make the best decision with how to proceed with your case. Once a final judgment is issued, it is difficult to go back and change the outcome. Therefore, it is important you make each decision along the way very carefully and as informed as you can.